Gay Couples in Common Law Marriage States: Call Your Lawyer

Gay Couples in Common Law Marriage States: Call Your Lawyer

Unintended consequences.

A wedding is not just two people exchanging rings; it is an entanglement of their personal, legal, and business affairs. For better or for worse, marriage affects a broad and substantial list of rights involving inheritance, property, child custody, and more. Now that gay marriage is legal in all fifty states, both the people involved in gay relationships and the legislators drafting the laws that govern all these rights need to carefully analyze the issues presented.

The issues involved are beyond whether one is in favor or opposed to gay marriage. When the U.S. Supreme Court interpreted the Fourteenth Amendment to say that gay marriage was a constitutional right in the Obergefell v. Hodges case, many who were opposed to the decision worried about the possible consequences for religious liberty and states’ rights.

As it turns out, those who cheered the decision may have their own reasons to worry. The Law of Unintended Consequences plays no favorites, and the Obergefell decision may create headaches for gay couples, especially in common-law marriage states.

Background on common-law marriage

Common-law marriage functions to create the legal relationship of marriage even though the two spouses have not completed the formal procedures to register their marriage with the government.

While the law differs from state to state, generally the requirements are that the couple are both legally able to marry (they both freely consent, are not already married to other people, are of sound mind, and are of legal age or have their parents’ consent), and they hold themselves out to the public as husband and wife. Some jurisdictions require the common-law spouses to be cohabiting, or to cohabit for a certain period of time, in order for them to be considered common-law married. Other states require children, either by birth or adoption.

Currently, common-law marriages are expressly allowed in Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. New Hampshire recognizes common-law marriages for probate purposes only, and Oklahoma, Utah, and some Native American tribes offer additional limited recognition. Some states have abolished common-law marriage but continue to recognize those contracted before their laws went into effect. For example, under the 2004 revisions to Pennsylvania’s domestic relations laws, any common-law marriage contracted before January 1, 2005 is still valid.

Most importantly, all states recognize common-law marriages that were validly created in other states, under Article IV, Section 1 of the United States Constitution, also known as the full faith and credit clause. Accordingly, this is an issue that should be followed by attorneys and lawmakers in every state.

That wedding wasn’t legal then, but might have legal consequences now

For gay couples living in a state that allows common-law marriage, especially those states that did not allow gay marriage prior to the Obergefell decision, they may find themselves meeting their state’s definition of a common-law marriage. [Here is the disclaimer where I remind everyone that I am not offering legal counsel to anyone reading this article.]

Think about a gay couple who bought a house together ten years ago, had a party where they invited their friends and family to watch them pledge vows to each other and exchange rings, and they have been living together and calling each other “husband” and “husband” or “wife” and “wife” ever since. Does that not sound like it meets the requirements of common-law marriage? Especially considering that most common-law marriage laws do not require any attempt at a ceremony to formalize the relationship, any gay couple who participated in such a ceremony may find it even harder to argue they had not held themselves out to the public as spouses.

“There are going to be financial consequences.”

“Any time you have an emerging field, you have unanticipated complications, [and gay couples are now] certainly at risk for a scenario where they get entangled in court,” said Eric Trabin, a family law attorney in Orlando, Florida. Trabin advises any couple, gay or straight, who are living together to have an attorney help them formalize their relationship in writing.

“I’d give the same advice [to gay couples] I’d give straight couples,” said Trabin. “It is always a good idea to have something in writing, about the respective rights and responsibilities, and financial implications, if they ever stopped being a couple.”

Trabin said that he believes that common-law states would be likely to start ticking the clock as of the date the Obergefell decision was rendered, and while that did mean that the case might not cause immediate legal impact, it was still critical for couples to seek good legal counsel.

“There’s nothing romantic about it but it’s still a good idea [to put the relationship in writing],”  said Trabin. Regardless of whether the couple entered into an agreement before or after they moved in together, or if they were gay or straight, “there are going to be financial consequences and they need to be aware of that.”

Gay marriage means gay divorces

One such financial consequence Trabin anticipates could be if a gay couple breaks up, and one member of the couple claims a common-law marriage existed and sues for alimony.

Jeff Schreiber, a family law attorney in Charleston, South Carolina, said that common-law marriage laws are “not just used to prove someone is married, it’s used as leverage” in negotiating how property ownership and other rights are determined after a breakup. Just the threat that one of the former members of a couple may attempt to claim a common-law marriage existed can encourage the other person to settle with them to avoid that risk.

Screiber pointed out additional “wide-reaching issues” that can be effected by the existence or absence of a marital relationship, such as property rights, inheritance, child support and custody, medical decisions, and criminal law.

For example, the spouses of members of the U.S. military have certain rights to the members’ retirements. In the event of a divorce, the spouse can be entitled to up to half of the military retirement, depending on the length of the marriage. After the Obergefell decision and the repeal of the “Don’t Ask Don’t Tell” policy, gay spouses would now be able to potentially claim a right to these military retirement funds just as straight spouses do.

Schreiber pointed out that spouses in all fifty states have claims on their spouses’ retirement accounts, both as heirs or in the event of a divorce. The law in South Carolina, where Schreiber practices, creates a “marital estate” of the couple’s property, deemed to come into legal existence on the date of the marriage, no matter whether the marriage was statutory or common-law.

According to Schreiber, if a South Carolina resident buys a house and has held themselves out as married, “they are essentially purchasing marital property and the spouse would have a share of any equity that they create.” Gay couples in community property states like California may find their assets similarly entangled.

This is not necessarily a bad thing, said Schreiber, but it does mean that gay couples should carefully consider the legal issues facing them. “All of a sudden, you have a [new] class of people who have a right to people’s property, and a right to their retirement,” explained Schreiber, people who may not have intended for their property to be connected in this way.

Obergefell: “a windfall for divorce attorneys”

Politically libertarian, Schreiber would have preferred that the issue be handled by the state legislatures, but the situation is certainly not disadvantageous for divorce attorneys. “I get to be in the trenches at $250 an hour,” he quipped, noting that while he has not handled a gay divorce yet, the Obergefell decision will undoubtedly be “a windfall for divorce attorneys,” creating a whole new class of potential clients.

The possibility that one of the members of a divorcing straight couple may enter into a gay relationship has already affected how divorce attorneys handle certain custody agreements.

Many of these agreements, governing the physical and legal custody of children both before and after their parents’ divorce, impose morality restrictions on the parents, prohibiting either parent from having an overnight guest for romantic purposes while the children are staying with them. Schreiber says he and many other divorce attorneys have started drafting these clauses to cover both straight and gay relationships, as a “non-spouse romantic companion.”

Obergefell did resolve one problem faced by divorced couples where one of the members then entered into a gay relationship and got married. Under the morality clauses in many custody agreements, the gay ex-spouse would be forbidden from having the children in the home if the new spouse was staying there, if gay marriage was not legal in that state. This is still a new area of law, but presumably a court would have to interpret a gay marriage as satisfying the rules only allowing the ex-spouse to have physical custody of the children along with someone else to whom they were married.

Child custody is just one issue affected by marriage laws, and while many state legislators may be opposed to the Obergefell decision, the residents of their states have vitally important family, property, inheritance, medical, and business rights that Obergefell may have changed.

Properly handling the legal implications from this court decision will involve more than just changing forms from “Husband and Wife” to “Spouse 1 and Spouse 2,” and citizens of states that did not previously allow gay marriage should demand that their legislators take care to examine their laws and make whatever amendments are necessary as soon as possible.

Follow Sarah Rumpf on Twitter: @rumpfshaker.

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