What Is Common Law Marriage?

Common Law in AZ

If you’ve lived with your partner for a number of years, it can begin to seem as if you are already married. There are some states in the US that recognize this situation and don’t require an official ceremony, marriage licenses, or documents; in these states, simply living with your partner long enough means you’re in a common law marriage. However, while this is applicable in some states, Arizona is not one of them.

The practice of establishing a new common law marriage in Arizona does not exist – at least from a legal standpoint. This means you must go through the legal marriage process to have your marriage considered valid in Arizona. However, there is an exception to this rule, which many are unaware of.

As with any exception and any law that varies greatly from state to state, there is often confusion regarding common law marriage in Arizona. Our team at The Valley Law Group can help educate you regarding your rights. While simply living together for a long time doesn’t give you access to certain rights of a married couple, there are legal ways you can obtain these rights.

Common Law Marriage Explained

Common Law Documentation

Common law marriage enables a couple who did not file for a marriage license in that state to be considered legally married on the basis that they have lived together for some time. Only a few states in the nation allow common law marriage, though the rules dictating the practice vary between states. For example, New Hampshire legally recognizes common law marriages between couples who have lived together for at least three years, but only for the purpose of transferring property in the event of one spouse’s death. No other states have set a minimum period of cohabitation before common law marriage is considered valid; instead, residents must meet other qualifications.

States that recognize common law marriages include:

  • Colorado
  • Iowa
  • Kansas
  • Montana
  • Oklahoma
  • Rhode Island
  • Texas
  • Utah
  • Washington, D.C.

In addition, 14 states that once allowed common law marriages recognize existing common law marriages in the state.

Arizona, however, does not recognize new common law marriages, and the state has never recognized it in the past. That means that if you and your partner have lived together for a decade in Arizona, you aren’t considered married unless you fulfill a marriage license or have an official wedding ceremony.

With that said, there is one exception to this law.

The Exception to Arizona’s Common Law Marriage Rule

If you are in an existing common law marriage in another state, Arizona should recognize it while you are visiting or living in the state. As long as you have valid contracts and your relationship was established in a state where common law marriage is recognized, the state should recognize that you are married. The basis for this understanding is Article V of the United States Constitution.

Still, there are no guarantees that every entity in the state will recognize your common law marriage established in other jurisdictions. If you are in a common law marriage, have recently moved to Arizona, and need assistance in proving the validity of your marriage, consult a family attorney as soon as possible.

What Are the Cohabitation Laws in Arizona?

Cohabitation Laws in Arizona

While Arizona doesn’t permit the creation of new common law marriages, this doesn’t mean couples who live together while unmarried have no rights. Couples can sign a cohabitation agreement in Arizona, allowing them to live together and have access to certain rights despite not being married. Still, while the legal rights of married couples are clearly defined, the rights of couples who have signed a cohabitation agreement can become a bit confusing.

What Do Cohabitation Agreements Do?

A cohabitation agreement is a contract created by couples who are living together that explains the division of their liabilities and assets, as well as who legally owns properties. Unlike common law marriages, Arizona does recognize and adhere to cohabitation agreements. These are legally binding documents that the state views as legitimate.

These contracts allow Arizona couples to exercise their property rights via contractual means. Property that is obtained during cohabitation is usually considered separate property in Arizona, but signing a cohabitation agreement could change that. You may be able to explain in your agreement that any property purchased during cohabitation is considered joint property. Some properties may be able to stay separate, even if they were obtained during cohabitation, but you have the option to place certain assets and property into joint property if you desire.

Automatic Rights

Married couples in Arizona don’t have to worry about their rights, as marriages enable couples to obtain automatic rights to assets or debts that are equally owned by married people. However, cohabitating couples aren’t given any automatic rights, as they must create a cohabitation agreement and have it verified before they have access to these rights.

What Should a Cohabitation Agreement Contract Include?

The last thing you’ll want to experience is visiting a notary, showing them your finished cohabitation agreement, and being turned away due to missing information. If your cohabitation agreement doesn’t include the right information, it could be dismissed, and you won’t be able to obtain the rights you’re trying to seek. To ensure your agreement is effective, valid, and clearly defined, make sure you consider the following elements.

Both Parties Must Write and Sign It

 Both Parties Must Sign

You wouldn’t want one person signing all of your documents without your knowledge in any case, and the same goes for cohabitation agreements. Both parties involved in the relationship must write the agreement, agree on its specific terms, and sign it. If either one of you disagrees about something in your contract, it isn’t legally enforceable.

Property Division

Your contract must explain how your property will be divided should you separate. Assets such as your house, cars, stocks, bank accounts, debts, and more should be considered. Your contract cannot be enforceable if there is no information regarding property division.

Managing Joint Finances and Debts

Shared investments, expenses, savings, and other finances should be considered when forming your agreement. If you and your partner are having disagreements regarding how to handle your finances, you can refer to your contract. Also, if you’ve accumulated debt, your contract can specify how to address your debt. This can prevent arguments in the future regarding who should cover what amount of debt.

Financial Support Arrangements

Should you choose to separate in the future, one of you may need to provide financial support to the other. Your cohabitation agreement should lay out a plan for support arrangements in case this occurs later on. It should specify how much one party will owe and for how long they must provide financial support.

Child-Related Matters

Many cohabiting couples already have children or wish to have children once their agreement is finalized. It is vital that you discuss matters such as child custody, parental rights, child support, and other similar matters as you write your contract.

Resolving Disputes

Disputes over your cohabitation agreement may occur, and if you’d like to ensure the disputes are resolved quickly and efficiently, discuss how you’ll do this in your contract. For example, some couples opt to use mediation to resolve their legal matters, and you can write this in your contract. If a dispute arises, your contract can state that you must hire a mediator.

Amendment Terms

Simply put, your contract should explain how you can change the terms outlined in the agreement, including if they can be revoked entirely. Circumstances change all the time as people secure new jobs, move to different houses, and more. Be sure you explain the process for how to make amendments to your agreement.

What Makes Cohabitation Agreements Legal?

As previously mentioned, your cohabitation agreement must be legally verified and notarized before it goes into effect. However, there are other factors the court must consider before they can enforce your agreement.

It is important to remember that Arizona recognizes cohabitation agreements as enforceable, but only if the contracts are valid.

  • Mutual Consent – Neither party can be forced to sign the contract, and no outside parties can be involved in signing the agreement. If you or your partner disagree on any terms outlined by the contract, your contract is invalid.
  • Lawful Terms – Your contract cannot include any illegal activities or services. Everything in your agreement must adhere to Arizona laws and statutes.
  • Give and Receive – As with any contract laws, both people involved should give and receive something of value as outlined by the contract. Regarding the cohabitation agreement, this usually means each person promises to abide by the terms they both agreed to when drafting and signing their contract.
  • Clear Language – Your contract can’t include terminology or language that is confusing or leads to too many interpretations so both parties, as well as courts and attorneys, know exactly what your document states. If a disagreement does occur, or you’re unsure of what to do regarding your property, you can simply refer to your contract and know precisely how to proceed.
  • Fully Disclosed Assets – Your agreement won’t be considered legal if you do not fully disclose your liabilities and assets. Doing so makes the process more fair and prevents arguments from arising in the future, so be sure you’ve fully disclosed everything in your contract so your agreement can be validated.

What Happens If a Cohabiting Couple Marries?

If you’ve already created a cohabitation agreement but later decide to get married, your agreement isn’t automatically voided, but it also doesn’t become a prenuptial agreement.

A prenuptial agreement, also called a prenup, details what to do if a couple decides to separate or divorce. It includes information that a cohabitation agreement would, such as property division and support arrangements. If you do get married, your cohabitation agreement cannot be converted to a prenup. You will have to draft a new agreement entirely, but you can still refer to your prior agreement if you wish.

Arizona’s requirements for prenups are also slightly different, and some terms are unique to prenups, such as who will be responsible for post-marital debts of the other party. While a cohabitation agreement could be used as a guide for how to fill out a prenup, you must go through the prenup process completely if you choose to marry in the future.

How Can a Family Attorney Help?

If you and your partner are aware that your relationship isn’t considered a marriage and doesn’t contain the same legal protections, you may wish to create a cohabitation agreement. While not legally required, you should have a qualified family attorney represent you as you attempt to have your contract notarized. Your attorney can also ensure you fully understand the terms laid out in your agreement, as well as make sure the terms are legal and don’t violate any other laws.

Many couples run into arguments over property division, child support, and more. These arguments mainly result from the fact that something in their cohabitation agreement wasn’t clearly defined or that one party misunderstood something that they previously signed off on. When you hire legal representation to assist you, they can help you understand what your contract entails.

It is highly recommended to hire an attorney before drafting your contract, as a skilled legal mind can walk you through each step of the process and help you ensure your contract is sound. For instance, if you’re unsure how responsibility for debts should be handled, your lawyer can examine your and your partner’s financial situation and determine what to include in your agreement and how to word it. If you neglect certain information, such as dispute resolutions, in your contract, it can prolong the creation process and make your contract less likely to be validated.

Consult with The Valley Law Group Today

Family Law Attorney AZ

Common law marriage in Arizona may be unrecognized, with one minor exception, but couples who live together and don’t wish to be married can still access some of the same rights as married couples. It is crucial to understand the process necessary to create such a contract. Arizona law is known to be full of intricate details that can be easily overlooked. Whether you need legal assistance when writing your cohabitation agreement or need to resolve a dispute related to your agreement, we can help.

The Valley Law Group understands how complex common law marriage and cohabitation can be, but we’re committed to helping you and your partner understand your rights. Completing the right paperwork can be complicated, especially if you’re unsure what terms should be included in your contract. We can help you ensure your agreement includes all the necessary information and represent you in court if a legal dispute over your contract arises.

For more information about how we can help you explore a cohabitation agreement, contact our team today.

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