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.
As described in this article, Kardashian is pregnant with Kanye West’s baby (“I ain’t sayin’ she’s a gold digga”, right Kanye?). But the baby was conceived while she was still legally married to NBA semi-star Kris Humphries.
In California, that means that the law will presume that Humphries is the biological father of the child, even though they all believe and/or know that West is the actual father.
The law is the same in North Carolina. In this state, the law presumes that any child born or conceived during the marriage is the biological father of the husband. This is true regardless of whether the husband and wife are separated when the child is conceived.
In fact, this is one of the strongest presumptions in North Carolina law and can be very difficult to overcome. It takes both the cooperation and agreement of all parties and/or some legal wrangling to overcome this presumption.
In my experience, most people are stunned to find out that a child conceived after a separation by someone other than the mother’s husband is legally presumed to be the husband’s child. Typically both the mother and the husband are shocked. The biological father can be either upset or ecstatic, depending on his perspective. So, his cooperation may or may not be easy to obtain.
The reason for this law is that the public (often referred to as “the State” in legal writing) has an interest in making sure that there are as few illegitimate children as possible. The public wants as many children as possible to be legally attached to two parents. Historically, there was a social stigma to being an “illegitimate” child. It seems that this stigma has greatly faded with changing social norms.
However, there is also a strong financial purpose behind the law. The public (i.e. taxpayers) does not want to financially support children if it can find a father to support the child. Since every parent in this state has a legal obligation to financially support their children (unfortunately, the law does not and cannot require emotional or actual parenting support), the public tries very hard to find a father for children.
While new laws enacted in 2012 make it a little bit easier for husbands to fight against this assumption, it remains a very powerful law.
The bottom line is that married individuals need to be very careful about conceiving children between separation and the entry of a divorce. Conceiving during this time period creates very serious consequences, usually of the unintended variety.
As an update, I have pasted below a blog post from the Greensboro News & Record from a group of Family Law Professors from the various law schools in North Carolina:
As usual, Doug, your comments are thoughtful. But family law professors from every law school in the state – including Campbell – agree with the UNC white paper on the dangers that Amendment One poses to domestic violence protection for unmarried couples. The Campbell white paper ignores a critical distinction between the Ohio amendment and Amendment One. The Ohio Supreme Court eventually concluded that the Ohio amendment did not require denying domestic violence protection to a victim unmarried to her abuser. But the Ohio amendment merely prohibited THE STATE from CREATING a legal status for unmarried relationships. Amendment One is much more far-reaching. Amendment One declares that the only “domestic legal union” that the state shall find “valid” or “recognize” is a marriage. In other words, all other “domestic unions” are “illegal,” or “not lawful.” Surely, lawyers who represent batterers who live with victims to whom they are not married will argue for this interpretation. I certainly hope that ALL the district court judges in the state who hear this argument will reject it, which seems a vain hope indeed. And I hope that when after some district court judges accept the argument, the appellate courts of this state will eventually reject it. But how much domestic violence are we willing to tolerate until that happens – assuming the appellate courts reject the argument? There is no reason to tolerate any. Marriages in North Carolina have been limited to a man and a woman for 150 years. Fifteen years ago, we passed yet another marriage statute, making clear that if same sex couples marry in a state that permits their marriages and then move to North Carolina, North Carolina will not honor their marriages. If Amendment One is defeated, which I fervently hope it will be, nothing changes. Marriages in North Carolina will continue to require the “consent of a man and a woman,” as they have for 150 years. If Amendment One passes, things change: unmarried families – some of whom are prohibited by the state from marrying – are a lot less safe. That’s why family law professors from every law school in the state – including Campbell – have joined this statement:
We are family law professors who teach at every law school in the state of North Carolina. We speak on behalf of ourselves, rather than our institutions. Based on our professional expertise, the language of the proposed North Carolina amendment is vague and untested, and threatens harms to a broad range of North Carolina families. The amendment is phrased more broadly than most similar amendments in other states, and would therefore likely be construed by courts more broadly than in other states. The amendment would certainly ban same-sex marriages, civil unions, and domestic partnerships, and would very likely ban the domestic partnership health insurance benefits that a number of municipalities and counties currently offer to same- and opposite-sex unmarried couples. It also threatens a range of other protections for unmarried partners and their children, including domestic violence protections and child custody law. We are aware that some law professors at Campbell Law School think otherwise. In our view, this disagreement simply underscores the fact that Amendment One is vaguely worded and that it is not possible to know how broadly it will eventually be construed.
April 20, 2012
Professor of Law
Campbell Law School
Charlotte School of Law
A. Kenneth Pye Professor of Law
Professor of the Practice of Law
Director of Legal Ethics
Clinical Professor of Law
Director, Duke Legal Project
Duke Law School
Elon School of Law
Kia H. Vernon
Assistant Professor of Law
North Carolina Central School of Law
Reef C. Ivey II Professor of Law
Holning S. Lau
UNC School of Law
Professor of Law
Executive Associate Dean and Professor of Law
Wake Forest School of Law
On May 8th, North Carolina voters (that is probably you) will go to the polls (hopefully) to vote on Amendment One. Amendment One would theoretically change the North Carolina Constitution to ban same sex marriage.
The actual wording of the Amendment is as follows:
“Marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.”
The wording is a bit confusing and a little vague legally. That has contributed to great confusion among people I have talked to as to what they would actually be voting for or against.
In an effort to help educate people on the Amendment, I have included below the Executive Summary of an article entitled “Potential Legal Impact of the Proposed Same-Sex Marriage Amendment to the North Carolina Constitution” (footnotes omitted). You can read the whole article here. This article was written by law professors at the UNC School of Law (my alma mater in the interest of full disclosure).
One thing to understand initially is that North Carolina does not recognize same sex marriage. Same sex couples cannot get married or divorced in North Carolina under current law. Perhaps that is one reason for the confusion.
My hope is that you will feel a little less confused about the Amendment and it’s potential impact before you vote on May 8th (I strongly encourage everyone to vote!). Also, this is by no means the only view of the Amendment. But, it is the most unbiased and academic one that I could find that was not from a political based group.
The proposed Amendment would not simply place this state’s current statutory prohibition of same-sex marriage into the North Carolina Constitution, as its sponsors seek.
Instead, the proposed language is problematically vague, untested, and threatens to upend years of settled law. In prohibiting state recognition or validation of “domestic legal unions,” the proposed Senate bill would introduce into the Constitution a phrase that has never been used in any prior statutory law in North Carolina, never been interpreted by its courts, and never been interpreted by courts in any other state. Taken as a whole, the bill’s language is sufficiently vague, and its
scope significantly unclear, that it would enmesh our courts in years of litigation to untangle its appropriate meaning. Moreover the eventual result of judicial interpretation of the Amendment would be uncertain. It could, however, be interpreted to upend completely the very minimal legal rights, obligations, and protections now available to unmarried couples, whether same-sex or opposite-sex.
The Amendment could be construed by courts to:
Prevent the courts from enforcing private agreements between unmarried couples, therefore encouraging the wealthier members of couples to avoid marriage so that they will not be subject to obligations to transfer property;
Interfere with child custody and visitation rights that seek to protect the best interests of children;
Invalidate protections against domestic violence to members of unmarried couples;
Interfere with end-of-life arrangements, such as wills, trusts and medical powers of attorney, executed by unmarried couples;
Invalidate domestic partnership benefits currently offered to same-sex and opposite-sex couples by local municipalities;
Prevent courts from enforcing private employers’ agreements to provide benefits such as health insurance to employees’ domestic partners.
The vague and untested language of the Amendment would therefore cause real harm to a broad range of North Carolina citizens. The proposed Amendment could be interpreted to strip the increasing number of unmarried heterosexual couples of their ability to order their relationships and property through contract, deny legal protection against domestic violence, and cut them off from custody of their children. By the same token, committed same-sex couples in North Carolina, who are already precluded from marrying, would also no longer have access to these minimal protections. Even if courts did not ultimately adopt a broad interpretation of the Amendment’s language, these couples’ rights would be uncertain during the inevitably long period of time that it took for these issues to work their way through the courts. The Amendment’s broad sweep would also interfere with municipalities’ freedom to determine domestic partnership benefits for their own employees. It could also undermine private employers’ efforts to attract top employees to North Carolina by providing employee benefits to domestic partners, as the courts and public medical facilities may not be permitted to recognize those benefits. Finally, the breadth of the Amendment’s language and its untested terminology will significantly tax the resources of North Carolina courts, which will be charged with interpreting its scope.
As a collaborative divorce lawyer, I generally extoll the virtues of avoiding divorce. But, a film documentary has reminded me that to everything there is indeed a season, and a time to every purpose under Heaven.
51 Birch Street tells a powerful story. It is the story of a husband and wife that stayed married for 53 years, raised three kids, and seemed happy, but ultimately may have benefited from a divorce.
After her death, Filmmaker Doug Block discovered that his mother lived most of her marriage resenting his father, and may well have preferred to have not been married at all.
Further, shortly after his wife of 53 years died, Block’s father married his long lost former secretary.
That left Block to wonder whether his father had been in love with his secretary for decades, and whether his mother knew it.
The film raises many questions. One that sticks with me is when is it better to be divorced than to live life in misery, or pining for the person you truly love?
I watch many of my clients struggle with these questions as they go through the divorce process. Unfortunately, I can’t answer that question for them. But, 51 Birch Street will serve as a reminder to me that there may be many right answers to these questions.
Pre-nuptial (also “pre-marital”) agreements are what everybody calls “pre-nups”.
Pre-nups have a mixed reputation in our society. Some people see them as smart protection from gold digging prospective spouses. Others seem them as cold-hearted unromantic acts that stand in stark contrast to what you’re supposed to be feeling before you get married.
But, most people don’t know about another more positive use of a pre-nup: An antidote to an ugly divorce™.
You and your future spouse can create a pre-nup in which you agree to try to avoid an ugly divorce if the marriage doesn’t last forever.
You can sign a pre-nup in which you both agree to attempt to resolve any future divorce, custody, child support, alimony, and property division issues through collaborative divorce or mediation before you go to court.
This kind of pre-nup doesn’t determine the terms your ultimate resolution. You don’t have to figure it all out ahead of time. It simply determines the first process that you’ll use to figure out the details if things don’t work out.
A pre-nup cannot prevent a court from ordering financial support to a child. And, in North Carolina, a court always has the right to enter an order for the custody and support of a child if and when the court finds it necessary.
However, North Carolina courts will enforce pre-nups under current law.
There are many potential benefits of a pre-nup that requires a couple to attempt a collaborative divorce or mediation before going to divorce court. What are they?
EMOTIONAL BENEFITS: From an emotional standpoint, you would be committing to each other that even in the unfortunate event that things don’t work out, you do not want to put each other through the ringer in a divorce.
Some people have are afraid to get married. Many of those people have a fear of divorce, instead of a fear of marriage. And that fear is usually based on their understanding of what a bad divorce looks like. Maybe they have been a party to a bad divorce as either a spouse or child.
A pre-nup that requires you to first try to handle a subsequent potential divorce with dignity, grace and respect may take a lot of the fear of divorce away. And, that, in turn, may take some of the fear of marriage away. And, less fear seems like a very good thing for the health of any marriage.
FINANCIAL BENEFITS: Financially, this kind of pre-nup commits you to processes that seek to preserve your financial well being in the divorce process. Both collaborative divorce and mediation are based on the idea that people don’t want to spend their life’s savings on divorce attorneys and court battles.
LEGAL BENEFITS: Legally, collaborative divorce and mediation open an almost limitless range of options for resolving divorce issues that are frequently not available in court. These options often serve families far better than the limited options that a judge faces.
Nobody wants to think about divorce when they are thinking about getting married. But, we do it anyway. Rather than letting it be a scary idea that sits in the back of your mind, you can plan for that “what-if” before you get married.
After all, agreeing in a pre-nup not to go to war in the event of a future divorce is an act of love in itself. And, it may be a good step towards ensuring that your pre-nup never matters.