In a common law marriage, people bypass a state's normal marriage licensing procedures. Today, although common law marriage is uncommon, it occasionally becomes an issue. In addition, there are a number of remedies sometimes available when non-married couples separate.
Common Law Marriage in Nevada
Nevada has not had common law marriage since 1943. Since that was over eighty years ago, and one normally must be 18 years old to marry, it is unlikely that there are any couples still alive who were common law married in Nevada.
Recognizing Common Law Marriage from Other States
Nevada does, however, recognize valid marriages from other US states and even other countries. It is possible for someone to have been common law married in another state, then moved to Nevada, which will then recognize the common law marriage from that other state.
Common law marriage is only recognized in a few states: Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. A few other states had common law marriage in the recent past, including Alabama (2017), Pennsylvania (2005), Ohio (1991), Idaho (1996), Georgia (1997), and Florida (1968).
Requirements for Common Law Marriage
It is a myth that one can become common law married solely by cohabiting with someone for a number of years. Although each state’s law is different, common law marriages generally require that the parties intended to be married, agreed to be married, and held themselves out as married.
Alternatives to Common Law Marriage
Even if there is no common law marriage, there are alternatives for people who find themselves separating from a partner.
Putative Spouse Doctrine: Sometimes one or both parties believed they were married, only to find out later that they were not. This usually happens because there is something wrong with the validity of the marriage or because one party was already married to someone else at the time of the wedding. In this case, an innocent party who did not know he or she was not married can claim that to be a putative spouse, entitled to some of the same rights as an actual spouse. In the well known case Williams v. Williams, 120 Nev. 559, 97 P.3d 1124 (2004), the Nevada Supreme Court held that a putative spouse is entitled to treat property obtained during the “marriage” as community property.
There are important differences, however. For instance, a putative spouse is not normally entitled to alimony, although it is still an open question whether an innocent spouse may be entitled to alimony if there was actual fraud on the part of the other spouse.
Fraud: In addition to the putative spouse doctrine, when someone is fraudulently deceived into believing there was a marriage (or anything else), an innocent party can claim damages due to fraud. Fraud claims are generally litigated in general civil court instead of family court.
Constructive Trust: A constructive trust claim is difficult for non-attorneys to understand. In essence, the parties agreed that property would be held by one person for the benefit of another person. The court may then deem that the property was held in a trust – not a formal, written trust, but a “constructive” trust – under which the property must be transferred to the other person when certain conditions are met (for instance, when requested). In the case of parties cohabiting and pooling their assets, the court may deem that the parties agreed that property would be held by party for the benefit of the other.
Community Property by Analogy: In the case Western States Construction v. Michoff, 108 Nev. 931, 840 P.2d 1220, 840 P.2d 1220 (1992), a man and woman started and operated a business together and agreed to be equal partners of a business, although only the man was listed as the legal owner. The Nevada Supreme Court held that when parties, either expressly or implicitly, agree to hold property as though it were community property, then that agreement is enforceable.
Palimony: Palimony is support or other payment given to someone in the absence of a marriage. Palimony does not just happen because a couple lives together or because one partner needs support. Palimony is fundamentally the enforcement of a contract, express or implied, much like community property by analogy. Palimony has a questionable status in Nevada law: the language of prior cases, as well as Nevada statutes passed by the legislature, seem to indicate that Nevada would recognize palimony. Despite this, the Nevada appellate courts have not recognized a palimony case distinct from community property by analogy. This may be because meritorious palimony cases are so rare. A party would need to show the existence of an express or implied contract to divide property a certain way, for support payments after the relationship ends, or for some other provision that should now be enforced.
How to protect yourself against claims when a relationship ends.
If you find yourself worried about claims such as common law marriage, community property by analogy, and palimony, the solution is to enter into a written agreement (such as a cohabitation agreement) with your significant other waiving such claims. Similar to prenuptial agreements, a little bit of preparation can result save a lot of litigation later on if things don't work out.
If you are not formally married...
Even if you are not formally married, you may still be entitled to a portion of the property acquired during the relationship. In addition to common law marriage (from a state that recognized common law marriages at the time), there are a variety of remedies that may be available.