Shacking Up, or Common Law Married?

By | November 2nd, 2012

So you and your boyfriend/girlfriend have decided to move in together in South Carolina but not get married? Be careful, because in South Carolina you could be deemed to be common law married. There are many misconceptions about common law marriage in South Carolina. It is very important that you know how common law marriage occurs and what consequences can result.

In order to be common law married in South Carolina the following requirements must be met:

  1. Both parties must be legally free to marry (not already married to someone else).
  2. Both parties must be at least 16 years of age.
  3. There must be an agreement and intent between a man and a woman to be married, no ceremony required.
  4. The parties must cohabitate (live together). There is no set minimum time limit. You can live together one day and be common law married or live together for years and not be. It all depends on the circumstances involved.
  5. Both parties must hold out to the public that they are married. Examples include but are not limited to filing joint tax returns, telling people they are married, and providing insurance coverage for the other party.

There are consequences, both good and bad, to a South Carolina common law marriage:

  1. A common law marriage carries the same rights and obligations as a formal marriage, including spousal support and inheritance rights.
  2. There is no common law divorce; you must go through the formal divorce process.
  3. Children are legitimated if parents are married (common law or otherwise) at the time child was conceived or born or anytime thereafter.

The issue of whether you are in a South Carolina common law marriage can be a tricky one and have common law marriage or divorce issues. You should speak with an experienced South Carolina attorney regarding any common law marriage or divorce issues.

Frequently Asked Questions About Common Law Marriage in South Carolina

What are the requirements to be common law married in South Carolina?

In order to be common law married in South Carolina the following requirements must be met: Both parties must be legally free to marry (not already married to someone else); Both parties must be at least 16 years of age; There must be an agreement and intent between a man and a woman to be married, no ceremony required; The parties must cohabitate (live together). There is no set minimum time limit. You can live together one day and be common law married or live together for years and not be. It all depends on the circumstances involved; Both parties must hold out to the public that they are married. Examples include but are not limited to filing joint tax returns, telling people they are married, and providing insurance coverage for the other party.

What are the consequences, both good and bad, to a South Carolina common law marriage?

A common law marriage carries the same rights and obligations as a formal marriage, including spousal support and inheritance rights. There is no common law divorce; you must go through the formal divorce process. Children are legitimated if parents are married (common law or otherwise) at the time child was conceived or born or anytime thereafter.

What do I do if I think I’m in a common law marriage in South Carolina?

There is nothing you need to do unless you want out of a common law marriage. If you are seeking to dissolve the common law marriage then you will have to file for divorce and seek a declaration by the Family Court that you are common law married.

How do I “solidify” common law marriage in South Carolina?

There is nothing you need to do to solidify common law marriage. If you meet the requirements then you are considered legally married under the laws of South Carolina. If you want to erase any doubt as to your marital status then you should get a marriage license and have a formal marriage ceremony.

If I meet the parameters for a common law marriage in South Carolina but did not intend to be married, what recourse do I have?

If you did not intend to be married then you do not meet the requirements of common law marriage in South Carolina and thus you are not common law married.

Is the divorce process different for a common law marriage in South Carolina?

No. There is no common law divorce in South Carolina. You must file for divorce as if you had been formally married and seek a declaration from the Family Court that you were common law married.

What if only one party wants to be common law married in South Carolina but the other doesn’t?

If only one party wants to be common law married then there was no agreement to be married and the couple is not common law married in South Carolina.

Am I entitled to alimony and equitable distribution if I believe I am common law married in South Carolina?

Yes. Common law marriage in South Carolina entitles you to the same rights and responsibilities as a person who was formally married. You have to file for divorce and ask for alimony and equitable distribution and seek a declaration by the Family Court that you are common law married.

If I am common law married in South Carolina but my name isn’t on the title to our house or other property will I still be able to live in it if we separate?

Yes. Common law marriage in South Carolina entitles you to the same rights and responsibilities as a person who was formally married, including marital property rights. You have to file for divorce and ask for alimony and equitable distribution and seek a declaration by the Family Court that you are common law married. If it is determined that you are not common law married you may have a similar recourse in Equity Court in South Carolina.

Will courts in other states recognize my South Carolina common law marriage?

Yes. Courts in all 49 other states will recognize a valid common law marriage under South Carolina law. However, if you don’t have a declaration from a South Carolina court that you were common law married the court in the other state will have to determine if you were common law married under South Carolina law.

The issue of whether you are in a South Carolina common law marriage can be a tricky one and have legal consequences. You should speak with an experienced South Carolina attorney regarding any common law marriage or divorce issues.

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