Imagine that after a long—or short—romantic relationship, you and your boyfriend have decided to go your separate ways. He has finally removed the last of his things from the home you formerly shared, and you feel ready to move on with your life at last. Then, one day, you hear a knock at your door. When you answer it, a process server hands you a complaint for divorce signed by your ex. “But we were never married!” you think. “How could this possibly be happening?”
Welcome to the world of common-law marriage. The District of Columbia is one of nine jurisdictions which do not require any particular ceremony to create a binding marital union. (Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah are the others.) No marriage licenses, officiants, or witnesses are necessary; D.C. law requires only that a couple agree, in words of the present tense, to be married and afterwards cohabit as husband and wife. Upon completing these actions, the couple is legally married—which means, when their relationship ends, they are subject to D.C. divorce law.
Historically, common-law marriage allowed surviving spouses to collect benefits or sue for damages when their life partners died and legitimized children so that they could enjoy inheritance rights. But common-law marriage can also be abused to seek economic benefits from a former romantic partner, who would have no defined legal obligation to an ex-lover but would have many well-known legal obligations to an ex-spouse. It seems that today, when so many couples cohabit without getting formally married, suits alleging common-law marriage are becoming more frequent. Nor are same-sex couples immune, since D.C. has recognized their right to marry since March 2010.
So what should you do if someone you have loved and lived with, but never considered to be your spouse, serves you with divorce papers? The first step is to contact an experienced family lawyer, who can help you to assess whether you were married under the common law or not. Your lawyer can advise you on the best way to contest your ex’s claims in court, since common-law marriage cases tend to follow procedural paths different from typical divorce litigation. He or she can also help you to gather the evidence and develop the legal arguments that you will need to prevail in your case.
And what should you do if you are currently cohabiting with a romantic partner and want to make sure you won’t face a common-law marriage suit if you ever break up? A family lawyer can help you, too, by drafting a cohabitation agreement for you and your partner to sign which clarifies your non-marital status and perhaps also addresses how you would disentangle any joint finances or property were your relationship to end.