PUJA SACHDEV | December 6, 2019 | Divorce Lawyer

If you and your partner never legally married and decide to separate, you may be wondering what steps you need to take to divide your property and split your assets. If there are children involved, you may also be questioning how to handle child custody and support. Finally, what do you do if you need spousal support or you have problems concerning shared accounts? The answers to these questions surprisingly depend on the legal status of your marriage.  

While California is often seen as a more liberal state when it comes to marriages, it is not as tolerant of common law marriages or couples that never officially get legally married. In the state, the legal status of your marriage matters. Common law marriage is not a legal married status in California. Couples who claim to be married in the state but never had an official ceremony and never got a legal marriage certificate will have difficulties when it comes to separating.

What is Common Law Marriage?

Common law marriage is when two partners act as if they are married but they do not ever have an official ceremony or obtain a marriage certificate. These actions include living together, taking each other’s last names, sharing bank accounts, and having children. A common law marriage may also be claimed by same-sex couples; however, the validity of that claim would depend on the state the marriage was formed in.

In certain states, a couple is considered to have created a legal common law marriage once they have lived together for a certain amount of time. This means that all benefits that are usually reserved for married couples will also apply to the common law couple.

In those states, the couple is not required to have a ceremony or get an official marriage certificate. They can simply claim to be legally married once they act as a married couple for the amount of time required.

Common Law Marriage in California

Is California a common law marriage state? No, California is not one of the few states that allow common law marriage. The ability to claim a common law marriage in the state ended in the 1800s. 

Marriage in California is now officially defined by statute and common law marriage is not a legal status. To be legally married, a couple must consent to the union and obtain a state marriage license. However, there are some exceptions to California’s non-recognition of common law marriage that gives rights to separating couples who have lived together for years but were never legally married.

For example, a common law married couple from a different state may be able to divorce in California if they have moved to the state and meet certain circumstances. The couple must:

  • Have reached common law status in a state that recognizes common law as a legal marriage;
  • Have moved to California after they were recognized as legally married under common law in that state;
  • Acknowledge each other as spouses; and
  • Have filed joint tax returns.  

California also recognizes the right to palimony in common law marriages through the Marvin case. 

Palimony is compensation between an unmarried couple that is made from one partner to another after they separate. This means that if a couple lived together for an extended period in California but never got married, one partner may be able to make a palimony claim to divide shared property or receive monetary support from the other partner.

Why Does Marriage Status Matter?

A legal marriage comes with many benefits for a couple. Some of these include tax deductions, joint legal decision making, shared healthcare plans, and insurance and social security benefits. Other benefits are those that are not thought of unless needed, like being able to visit a loved one in the hospital when visitation is limited to spouses and children.

In California, you can use the courts to go through standard divorce or separation procedures if you are legally married and decide to split up. The legal system is designed to assist with these types of claims through family and property laws. Even contentious claims where the two parties cannot agree may be more simplified than a common law couple who is separating.

However, it gets a lot more complicated if you do not have a legal marriage. Couples that only have a common law marriage in California risk forgoing valid claims of spousal support. They may also have difficulties when trying to divide property or separate accounts. Simply put, there are more rights for married couples in California. If you have a common law marriage and decide to separate, you should seek legal counsel to discuss your rights and options.

For more information, call our law firm at (619) 866-3756 or reach out to us via email by visiting our contact us page.