Can I Be Common Law Married in North Carolina?

Mar 28, 2013

Well, that is a fine question.  The answer is both yes and no.  (In law school, you learn to literally speak out of both sides of your mouth at the same time.  Usually, it is a third year course. That’s a joke. Sort of.) 


First, it is important to understand what is meant by the term “common law marriage”.  Common law marriage is simply stated a state government recognizing a couple as married after they have lived as though they were husband and wife for some period of time.  It is different than a traditional marriage in that it does not require the licensing and ceremonies typically required to get married under the law.


North Carolina does not recognize couples as being married under a common law marriage theory.  So, if you live in North Carolina, then no matter how long you live like a husband and wife, without a marriage license and ceremony, you will not be considered married by North Carolina.


But, there is a big loophole to this rule.  Other states do recognize common law marriage.  And, North Carolina does recognize common law marriages created in other states.


This issue was recently discussed again by the North Carolina Court of Appeals.  The Court of Appeals reaffirmed that while a common law marriage could not be created in North Carolina, this state would recognize a common law marriage created in a state where common law marriage is legal.


So, if you lived in a state that recognizes common law marriage and met the common law marriage requirements of that state, and then moved to North Carolina, then this state should recognize you as married.   


If there is a dispute as to whether you are common law married under the laws of another state, the North Carolina court has to apply the laws of that state to determine if you are considered married in this state.  For instance, in the most recent Court of Appeals opinion on this topic, the North Carolina court had to apply the law of Texas to determine whether the couple qualified as common law married under Texas’s rules before they moved to North Carolina.


So, why does this matter?  If your common law marriage from another state is found to be valid, then you can be divorced in North Carolina and you can utilize the laws regarding equitable distribution and spousal support. But, this state’s divorce, equitable distribution and spousal support laws do not apply if a common law marriage was not valid in another state.  

If you have questions about whether you can be considered married under the law of another state, consult a family law attorney in North Carolina, or in the other state, to get more information.  

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