Clients will often ask about the possibility of establishing a common law marriage. Kansas recognizes common law marriage, Missouri does not. There are only a handful of states that continue to allow common law marriage. If you are living in Missouri, but believe you entered into a valid common law marriage while living in Kansas or another state that does recognize common law marriage, you may still have a claim to common law marriage. This is often a detailed, careful analysis that you need to make with an experienced and knowledgeable family law attorney. Kansas will also recognize existing common law marriages that were established while the spouses were living in another state, if the common law elements of another state are met at the time the parties resided in that state.
What are the Required Elements of Common Law Marriage in Kansas?
1. Both parties must have the capacity to marry. There must not be any impediments to the ability to marry, such as one of the spouses being underage, the spouses being closely related, one or both of the spouses being married to someone else and having the mental and physical capacity/ability to marry.
2. The parties must have a “present agreement” to marry. This agreement does not have to be in writing or take a particular format, but it is necessary that the parties jointly intend to be spouses with one another. A present agreement to marry can be assumed from the parties’ behavior if the two parties involved behave in such a way that they hold themselves out as spouses and/or they mutually recognize one another as spouses.
3. The parties hold one another out as spouses. Generally, this requires a public “holding out” such as to family, friends and the community. This means that the parties share with the public information that is intended to make them believe the parties are spouses and have a general reputation of being spouses.
How long do the parties need to be common law married for it to “count”? There is no minimum time that couples have to cohabitate or live with one another before their common law marriage becomes valid in Kansas. However, generally, to meet the elements of “holding themselves out publicly” it takes longer than a day or a week or even a month, but the specific length of time is analyzed on a case by case situation.
What does not count as common law marriage?
In some situations, clients will indicate that they believe they are common law married because they have lived together, purchased a residence together or even had children with one another. Unfortunately, none of these items meet the test of being common law married (without the above-referenced elements being met). Couples can live together for a very long time, even 50 years, without being common law married, if they do not meet the above elements. In order to actually be common law married, the parties need to be able to legally prove all of the elements of a common law marriage.
If a relationship is focused on friendship, and not romantic feelings/intentions of being together as a married couple, again, that is not going to meet the elements of a common law marriage. Common law marriages are reserved for parties that have shown an intention to be in a romantic, marital relationship. Further, if you and your partner have discussed getting married “someday in the future”, you are not in a common law marriage because you intend to get married in the future, but do not consider yourselves married at the present time.
Even if the court determines that you are not in a common law marriage, you may still have other legal protections. For example, if you and your partner own real estate together, there are options to divide the real estate or other shared belongings. Further, if you and your partner share children together, you can still seek a custody determination for your children, including about paternity, custody, visitation, health insurance, child support and other associated items about your jchildren’s best interests. Other disputes may be solved through tort and contract law actions/provisions, as well as protection from abuse provisions, if applicable.
What are the Legal Effects of a Common Law Marriage?
If parties have actually met the elements of common law marriage, one party cannot simply “walk away.” Similar to traditional marriages, a petition for divorce must be filed where the court then has jurisdiction over the status of the marriage, division of assets and debts, child custody, child support, maintenance/alimony and other things associated with the marriage status. If a common law marriage is established, the couple has the right to all privileges of married couples in the state of Kansas, including the right to inherit property, receive access to health insurance and other family/dependent benefits and to be able to make medical decisions for one another in the event of an incapacity.
Why Do You Need Experienced Family Law Counsel if You are Dealing with A Common Law Marriage?
The legal requirements and factual proof/evidence to prove up or disprove a common law marriage are legally intricate. These legal arguments (to successfully prove or disprove a common law marriage) are not something that parties are able to navigate and prove up/research and litigate without assistance. The good news is that our office is willing to help you! You need timely answers to your questions to protect your interests, as well as those of your children if your children are involved. Put the knowledgeable and experienced team of lawyers at Pingel Family Law, LLC, to work for you. Call (816) 208-8130 today to schedule your consultation.
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