This article by Rhode Island divorce lawyer, David Slepkow applies to Rhode Island Family Law and the elements of proving that there is, in fact, a common law marriage. A vast majority of the states do not have common law marriage and will not recognize such marriages. There are about 11 states that still recognize common law marriage. (Certain states only recognize common law marriage if entered into prior to a certain date.)
Editors note 2018: Rhode Island has not abolished common law marriage as of this date. However , Rhode Island Family Court judges do not like common law marriage. The RI Supreme Court does not like common law marriage. It is very difficult to prove common law marriage in Rhode Island. In order to establish a common law marriage you need lots of documentary evidence establishing the marriage or a smoking gun like filing federal taxes jointly as a married couple or an affidavit establishing the marriage.
RI Common law marriage
What is the common law marriage definition?Common law marriage is not a statutory or codified creation in RI but has been created by case law from the RI Supreme Court sitting in the Capital city of Providence. A common law marriage cause of action is usually in RI Family Court but could also be part of a RI probate case or even a Superior Court lawsuit.
What is common law marriage?
Common law marriage has evolved over the years with more unmarried couples living together, having children and acting as an economic partnership. Therefore, in this day and age, it is not enough to prove a common law marriage if you can only show that you were in a long term, loving, committed relationship and you cohabited and acted as an economic partnership. You need to prove more than that, a lot more, to establish a common law marriage in RI.
Fiction – If a boyfriend and girlfriend reside together as a loving couple for 7 years then they are common law married.
This is 100% false. It constitutes an inane urban myth and it is not the law in RI! A boyfriend and girlfriend or a same sex couple could reside together in the same domicile for 40 years or more in Rhode Island and Providence Plantations and not meet the legal definition of common law marriage in RI!
Nonetheless, another bf and girlfriend could “shack up” for 7 days and be married under Rhode Island law. How could this this be true?
How could a party be common law married after 7 days?
Hypothetically, a boyfriend and girlfriend get engaged, call each other their fiancée and invite all their friends and family members to a large party which is not officially a wedding. The love birds do not obtain a marriage certificate from the State of Rhode Island and Providence Plantations or any other state. However, at the party the couple announces to all their friends and family in attendance that they are married and they consider this their wedding, they couple moves in together the next day. The woman puts he significant other on her health insurance at work. They are in all likelihood married by common law after just 1 week!
In order to prove a common law marriage in RI Family Court, a boyfriend and girlfriend or a same sex couple must prove by clear and convincing evidence that they “seriously intended to enter into the husband-wife relationship.” Demelo v. Zompa, 844 A.2d 174 “The parties conduct also must be of such a character as to lead to a belief in the community that they were married.” Demelo v. Zompa 844 A.2d 174 “The prerequisite serious intent and belief is demonstrable by inference from cohabitation, declarations, reputation among kindred and friends, and other circumstantial evidence.” Demelo v. Zompa, 844 A.2d 174
A very important factor to determine whether a party has met its burden of proof to establish the existence of a common law marriage is whether a couple holds themselves out to the community as husband and wife. The Rhode Island Family Court examines many factors, lots of conflicting evidence and numerous factual allegations in making the Court’s determination as to whether there is a common law marriage or not.
The Providence Family Court looks at a totality of the circumstances not just usually 1 or 2 factors
The RI domestic Courts do not typically focus on any one particular factor, exclusively. If one important element is not proven or is not applicable, there could still be a common law marriage pursuant to the law of RI.
Proving common law marriage in RI is analogous to building a brick wall. One brick in itself will not build the wall! Pulling out any particular brick will not cause the wall to fall. Similarly, No one factor usually creates a common law marriage. (perhaps, and I emphasize perhaps, the only exception to this is filing married for your federal income taxes)
The absence of a single factor to establish “common law” usually does not defeat a common law marriage!
(The exception to this may be lack of cohabitation between the parties)
The Providence Family Court Justice may look at whether the alleged wife took the purported husband’s surname. The alleged wife’s use of husband’s last name is some proof that the couple were holding themselves out to the community as being married despite not having a wedding or a marriage certificate. A woman’s use of her lover’s last name tends to exhibit a serious intent to enter into a marriage. If a woman utilized her ‘boyfriend’s’ surname for a long period of time despite not having a marriage certificate and uses the name in public then that will go a long way in establishing a common law marriage. A lady’s not utilizing her significant other’s surname will not be fatal to establishing a common law marriage in Rhode island and Providence Plantations. Kent County Family Court Judges and Providence family Court Justices are aware that in this era, it is not uncommon for a woman to use her maiden name after a wedding and the issuance of a marriage certificate. Therefore, use of a last name is far from a litmus test in RI to prove a common law marriage by clear and convincing evidence.
The Washington and Newport Family Court Judge will examine if the litigants introduce each other as “my husband” or “my wife” in social settings. The RI Family Court Judges are well aware that married couples usually do not introduce their spouse by his or her first name. Medical treatment forms, bankruptcy filing forms, financing applications and other forms may be crucial to determine whether the parties listed their purported spouse as a spouse. These forms, applications and documentation may constitute an admission that that there was a marriage. The length of time that the parties lived together in a loving committed relationship may be very relevant.
An economic partnership between the litigants may also be significant to establish a common law marriage in RI by clear and convincing evidence. Joint bank accounts, joint home ownership, joint ownership of property, joint accounts, beneficiary designations on retirement plans, insurance applications could all be bricks in a wall of establishing a common law marriage.
Economic partnership as well as ‘shacking up’ (cohabitation) and having children together, without being married, is more and more common in this day and age. Therefore, these types of factors have become more of a prerequisite to having a common law marriage rather then competent proof, in itself, to establish a marriage.
In this day and age it is not unusual for a boyfriend & girlfriend to live together with joint bank accounts or even, perhaps, owning real estate together without intending to enter into a marital husband wife relationship. There are a plethora of other types of evidence that could be critical in establishing a common law marriage.
Another important issue in a common law marriage cause of action in Family Court in Rhode Island is whether an engagement ring or other wedding band was exchanged and which finger the ring was worn on.
This Family Law and RI divorce blog post concerning RI law in no way sets forth all evidence and documentation that is relevant in a Family Court proceeding to determine the existence of a common law marriage. If the litigants cannot consent that there was a husband- wife relationship then fact witnesses will need to testify under oath in Providence domestic court to establish a belief and reputation in the community that the parties were married. You will need to find witnesses from your social circle (friends, family, and acquaintances) to testify that they believe that you and your significant other are married. A reputation in the community that you were married is a very important element of establish common law in the Ocean State. The party refuting the existence of the common law marriage will need to find witnesses to testify that there is not a reputation in the community that the parties are married.
One of the most crucial elements of proof to establish a common law marriage in Rhode Island Family Court or Probate Court in RI is the tax status that the parties claim on their federal and state income tax forms. If the litigants filed married filing jointly or married filing separately then some Justices in RI would say that the common law marriage is established as far as Rhode Island law is concerned. A federal tax document is a very significant document and most people know the importance of being truthful when filling it out.
I would tend to agree that if the parties filed their taxes as married then they are probably in fact married! If the parties filed as married filing jointly and then one of them denies the common law marriage then they are in a perjury trap. Either they lied to the IRS or they are lying to the Court. Filling ‘single’ will not be helpful to establish a common law marriage however it is not fatal.
If you believe that you are common law married and want to terminate the relationship then you need to file for divorce in Rhode Island family Court seeking to establish the appropriate elements using a Rhode Island divorce lawyer. A RI divorce attorney will fight to get you the justice that you deserve in Providence family Court.
In Fravala we held that a trial justice did not err in determining that a couple was married at common law. Fravala, 996 A.2d at 706. In that case, the trial justice highlighted that the couple had pooled their finances, owned joint shares in a credit union, and were joint borrowers on a loan. Id. at 705. Further, the couple had co-signed a lease for their shared home. Id. The trial justice concluded that the couple “could be considered poster people for a traditional married couple, albeit without a marriage license.” Id. at 706. In contrast, in Zharkova, we held that the trial justice did not clearly err in holding that the couple in that case was not married at common law. Zharkova, 45 A.3d at 1292. There, the plaintiff argued that the couple’s jointly-filed tax returns, on which they identified themselves as “married,” and a property deed referring to them as “husband and wife as tenants by the entirety” sufficiently satisfied the clear and convincing evidence benchmark. Id. at 1291, 1292. Yet, we upheld the trial justice’s decision, because he believed the defendant’s testimony that the couple filed their tax returns as “married” in the interest of economy alone. Id. at 1292. The trial justice in Zharkova also relied on the fact that the parties “neither held joint bank accounts nor discussed with each other the purchase of large items[.]” Id. In addition, the trial justice found it persuasive that the plaintiff characterized herself as “divorced” on her daughter’s FAFSA forms and listed her daughter (and not the defendant) as beneficiary of her retirement account. Id.
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States that allow common law marriage?
- District of Columbia
- Georgia (if created before 1/1/97)
- Idaho (if created before 1/1/96)
- New Hampshire (for inheritance purposes only)
- Ohio (if created before 10/10/91)
- Oklahoma (possibly only if created before 11/1/98. Oklahoma’s laws and court decisions may be in conflict about whether common law marriages formed in that state after 11/1/98 will be recognized.)
- Pennsylvania (if created before 1/1/05)
- Rhode Island
- South Carolina
- Utah” http://www.unmarried.org/common-law-marriage-fact-sheet/
“Common law marriage is allowed in a minority of states. A common law marriage is a legally recognized marriage between two people who have not purchased a marriage license or had their marriage solemnized by a ceremony. Not all states have statutes addressing common law marriage. In some states case law and public policy determine validity.” National Conference of State Legislators http://www.ncsl.org/research/human-services/common-law-marriage.aspx