Your Guide to Virginia Common Law Marriage: Simple Facts

Virginia’s approach to common law marriage stands as a unique chapter in the broader narrative of marital law in the United States. This article ventures into the legal intricacies of common law marriage within Virginia, shedding light on the state’s clear stance: it does not recognize new common law marriages formed within its borders, yet acknowledges those legally established in other jurisdictions. This distinction paves the way for a range of legal scenarios and questions for residents and legal professionals alike.

By offering a concise yet thorough exploration of Virginia’s legal landscape regarding common law marriage, this piece aims to clarify misconceptions, outline the rights and obligations of couples recognized under such unions, and underscore the importance of informed legal guidance. Whether you’re navigating your personal relationship within the context of Virginia law, a practitioner looking for a refresher, or simply curious about this complex topic, this article promises valuable insights into the peculiarities of Virginia common law marriage. Let’s delve into an exploration that is as informative as it is essential for understanding the nuances of love, law, and commitment in the Commonwealth of Virginia.

What is Common Law Marriage?

A common law marriage refers to a relationship between two consenting adults who live together and present themselves as a married couple, but have not obtained a marriage license or had a formal wedding ceremony. It is based on the couple’s actions and intent rather than documented nuptials.

Some key facts about common law marriage:

• It is a legally valid form of marriage in several U.S. states and countries.
• The requirements vary by jurisdiction, but generally include cohabitation, intent, and holding out as spouses.
• Children born into common law marriages are considered legitimate.
• Common law spouses have similar rights and responsibilities as formally married couples.
• Most states have abolished or restricted it, including Virginia.

Virginia Does Not Recognize New Common Law Marriages

Virginia abolished common law marriage effective July 1, 1968. This means that any couple living together in Virginia without a marriage license or ceremony today would not meet the legal criteria for a valid common law marriage in the state.

However, Virginia does recognize common law marriages from other states or countries under certain conditions. So common law marriage is still a relevant topic for some Virginia residents if their relationship originated elsewhere.

Recognition of Out-of-State Common Law Marriages

Although Virginia ended common law marriage prospectively within its own borders, the state still acknowledges the validity of properly established common law marriages from other jurisdictions.

According to Virginia case law, the determining factors are:

• The couple must have established a common law marriage in a state or country that permits it.
• The marriage must be valid where it occurred.
• The relationship cannot violate Virginia’s public policy. For example, same-sex common law marriage is not recognized even if lawful where formed.

So if a couple living together in Virginia met the requirements for common law marriage in a different state before relocating, Virginia courts will likely uphold the marriage. However, rights may be lost if the couple separates and no longer meets the criteria for an intact common law marriage.

How Common Law Marriage Differs from Civil Marriage in Virginia

There are some notable differences between common law marriage and a formally certified marriage in Virginia:

• Process – Common law relies on meeting factual criteria rather than paperwork. Civil marriage requires obtaining a license and having a ceremony.
• Proof – Common law spouses may need to provide evidence of cohabitation history and reputation as a couple. Civil marriages rely on a marriage certificate.
• Benefits – Recognized common law marriages qualify for most marital benefits in Virginia. But foreign common law spouses cannot petition for immigration status.
• Termination – Common law marriages end when the relationship no longer meets required criteria. Civil marriages require legal divorce proceedings.

So while common law spouses have substantially similar rights and responsibilities in Virginia, the informal nature requires more effort to substantiate the marriage initially and after separation.

Rights and Obligations Under Recognized Common Law Marriages

Common law spouses whose marriage is acknowledged in Virginia have most of the same legal rights and duties as formally married couples. These include:

Property Rights

• Joint ownership of homes, vehicles, and other property acquired during the marriage.
• Division of assets if the couple divorces.
• Inheritance rights to a spouse’s estate if no will exists.

Spousal Support

• Responsibility to provide financial support during marriage.
• Eligibility for alimony following divorce.

Parental Rights

• Establishment of paternity for children born during marriage.
• Joint custody and visitation rights if divorcing.

Insurance Benefits

• Ability to be on a spouse’s health insurance plan.
• Eligibility for Social Security widow/widower benefits upon death of a spouse.

Debts and Liabilities

• Shared responsibility for each other’s debts incurred during marriage.
• Joint tax returns and liability.

Medical Decisions

• Visitation rights in medical facilities.
• Power to make healthcare decisions if incapacitated.

Inheritance

• Right of inheritance if a spouse dies without a will.
• Priority in being appointed as personal representative of spouse’s estate.

Wrongful Death Claims

• Ability to sue and recover damages for wrongful death of spouse.

So common law spouses essentially receive equal status and benefits to traditionally married couples once the marriage is validated. But establishing validity is key.

Protecting Rights and Interests in Common Law Marriages

Because common law marriages lack formal paperwork, couples should take steps to preserve legal rights:

• Keep records – Save evidence of living together like leases, bills, accounts, and mail.
• File joint tax returns – Claiming married status helps demonstrate intent.
• Consult an attorney – Get guidance on documenting the marriage, especially when relocating or separating.
• Write a will – Formally naming each other ensures inheritance rights.
• Use spouse designation – Titles like “husband” or “wife” on documents reinforce marital status.
• Purchase life insurance – Policies payable to a spouse provide security if widowed.
• Make healthcare directives – Naming each other on living wills and medical powers of attorney prevents issues.
• Get legal advice on separation – Understand how dividing property and support work with common law marriage.

Taking these steps provides crucial evidence of the marriage and protects each spouse’s interests.

Terminating a Common Law Marriage

Because no formal dissolution process exists, common law marriages end when the relationship no longer meets the factual requirements that defined it initially. This happens if:

• The couple separates and stops living together permanently.
• They no longer hold themselves out as married.
• One or both partners demonstrate they no longer consent to the marriage.

At that point, filing for divorce formalizes the termination. Residency requirements apply depending on which state handles the proceedings.

If no fault divorce options exist, the marriage can be legally dissolved without proving grounds. But issues like property division, support, and child custody may still rely on evidence of circumstances causing the breakdown.

Overall the process mirrors a traditional divorce, but state laws vary. Consulting a knowledgeable family law attorney is crucial for understanding specific laws and protecting rights when dissolving a common law marriage.

Historical Context of Common Law Marriage

Common law marriage has a long history in American jurisprudence going back to colonial times when formal weddings were impractical. The concept carried over from English common law traditions.

As the population grew and marriage/divorce laws developed, most states enacted statutes or court rulings invalidating these informal partnerships. By the late 19th century, nearly all states refused to recognize new common law marriages, including Virginia in 1968.

Societal disapproval of cohabitation outside formal wedlock prompted this shift. But courts upheld ongoing common law marriages predating statutory abolition to prevent illegitimizing children and disenfranchising surviving spouses. Vestiges of common law marriage remain valid today in about half of states.

Impact on Other Legal Areas

Virginia’s recognition of properly created common law marriages from other states impacts several other legal matters:

• Insurance Claims – Common law spouses can make claims on policies like health, life, homeowners, and auto insurance.
• Workers Compensation – A common law surviving spouse may receive death benefits after a work-related accident.
• Social Security – Widows/widowers can collect survivor benefits from a deceased spouse’s earnings record.
• Medical Decisions – Common law spouses have authority to make healthcare choices if their partner cannot.
• Wrongful Death – The surviving spouse has standing to sue for wrongful death of their common law husband or wife.
• Immigration – Foreign common law partners do not qualify for green cards or family-based immigration status.

So while most spousal rights transfer, some key benefits like immigration are excluded for common law marriages.

Case Studies and Precedents

Virginia courts have upheld common law marriages from other states in various cases:

• Renshaw v. Heckler (1984) – A West Virginia common law marriage qualified the spouse for Social Security widow’s benefits.
• Alexander v. Kuykendall (1992) – The court partitioned property between common law spouses married in Washington, D.C.
• Pinkhasov v. Petocz (2001) – A man was ordered to provide spousal support to his common law wife from Pennsylvania.

However, Virginia cases also illustrate the limits of common law marriage recognition:

• Kleinfield v. Veruki (1995) – A same-sex Canadian common law marriage was denied recognition based on Virginia’s marriage policies.
• Farah v. Farah (2009) – A couple’s religious/cultural cohabitation arrangement was not a valid common law marriage.

So precedent affirms recognition generally, but courts still evaluate compliance with Virginia law and policy.

Proving a Common Law Marriage Exists

The burden of proof falls on the party asserting a valid common law marriage in Virginia. Evidence commonly used to establish a claim includes:

• Tax returns, government forms, or other documents showing the common law status or married name.
• Joint bank account statements, credit cards, loans, leases, deeds, or bills demonstrating cohabitation and combined finances.
• Shared insurance policies naming the partner as a spouse.
• Wills, powers of attorney, or funeral instructions identifying the other partner as a spouse.
• Greeting cards, correspondence, or other writings referencing the marital relationship.
• Photos or details of a wedding ceremony even if not legally binding in that state.
• Affidavits from family, friends, coworkers, employers, or clergy on reputation as a married couple.

While one piece of evidence is not definitive, collectively they can satisfy the requirements and validate the marriage.

Financial and Estate Planning Tips

Common law couples should take extra steps to solidify their financial and future arrangements:

• Discuss titling of assets purchased together or separately. Keep detailed records.
• Draft wills and advanced directives like living wills naming each other and outlining wishes. Update upon relocation.
• Review life insurance, retirement accounts, and beneficiary designations regularly.
• Research state-specific inheritance rights and estate planning for common law spouses.
• Seek guidance on reducing tax liability with marital deductions, exemptions, and joint filing status.
• Obtain qualified domestic relations orders if dividing retirement accounts upon separation.
• Calculate and document contributions to shared household expenses. It can assist in dividing assets if separating.
• Research how marital property and support are determined when common law marriages end.

Proactive legal and financial planning preserves assets and prevents added family stress.

Finding Legal Help

Several options exist for obtaining legal guidance regarding common law marriage:

• Contact the state bar association – Get referrals to licensed family lawyers. Look for those experienced in common law issues.
• Search online legal directories – Websites like Avvo and Lawyers.com have profiles and client reviews.
• Ask for recommendations – Friends, coworkers, bosses, and others who were happy with their representation.
• Search directories of legal aid resources – If income eligible, reduced fee or pro bono assistance may be available.
• Contact law school clinics – Students supervised by experienced attorneys may handle cases at no or low cost.
• Look for free legal advice events – Many organizations and bar associations hold workshops or clinics to educate the public.

With an experienced attorney’s help, common law couples can successfully establish and exercise their marital rights in Virginia.

Conclusion

While Virginia ended common law marriage prospectively in 1968, courts still recognize valid common law marriages from other states or countries. These informal yet lawful unions provide most of the same rights, protections and duties associated with ceremonial marriage. But couples should take steps to properly document their status. Seeking legal guidance ensures that property, benefits, children, and mutual obligations retain the stabilizing influence marriage confers. With foresight, common law partners can protect their present interests and future security despite Virginia’s own restrictive matrimonial laws.