Common Law Marriage: How to Avoid It
By M. J. Goodwin
My friend, Greg Forman, wrote today about common law marriages and the misconception that a common law marriage involves less of a duty than a ceremonial marriage. Greg’s blog can be found here: http://www.gregoryforman.com/blog/2015/06/common-law-marriage-is-still-marriage/
I wanted to add to his wise words by reporting on some ways that I have seen clients inadvertently enter into common law marriages. Bear in mind that there is no such thing as a common law divorce. If one has a common law marriage, one must get a divorce in family court. The divorce process is the same one used for those who participated in ceremonial marriages.
An easy way to inadvertently enter into a common law marriage occurs in the effort to obtain health insurance. On two occasions in the past six months, I have been made aware of situations where a live-in boyfriend and girlfriend signed a form with an employer indicating that they are married. This was done solely to add the significant other to the group health insurance plan. What happens with this situation is that the insurance cannot later be dropped, when the couple breaks up, and the employer demands a divorce decree. This forces a couple, who never participated in ceremonial marriage, to go to family court in order to end the payment of the insurance premium.
Another way to accidently enter into a common law marriage is by filing income taxes together and claiming to be married. Again, there is a financial benefit in doing this, but the status can later be used to establish a common law marriage in family court.
The existence of the health insurance document or the tax return can come up in family court situations in which one party seeks to establish a common law marriage. There are many reasons someone might want to establish a common law marriage: to get alimony after a lengthy relationship or to get equitable distribution of property and retirement after a lengthy relationship. It is typically the less affluent or self-reliant party seeking to establish a common law marriage. This person has put him or herself in a precarious financial position by not having a ceremonial marriage. The relationship ends and then the “spouse” refuses to help with living expenses or divide property in an equitable manner. In order to get relief, the person seeking to establish the common law marriage must go to family court.
It is my personal belief that common law marriage should be abolished in South Carolina. But until that happens, common law marriage remains a sticky legal problem for those who either intentionally or accidently enter into a common law marriage.
If you need to discuss a common law marriage or any other family court matter, I can be reached by email at mj@mjgoodwin.com
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