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Common-Law Marriage and FMLA Leave

Even though common-law marriages aren’t common in the U.S. anymore, employers need to know their obligations under the law when a common-law marriage is legally recognized. Common-law marriage laws can be complex, especially for multi-state businesses. Employers need a well thought-out plan that is implemented consistently.

What is a Common-Law Marriage?

Common-law marriages have been legally recognized in the U.S. since 1877. While it may seem like an archaic form of marriage, it’s still recognized in 10 states and the District of Columbia. There are four criteria that are applied to determine if a common-law marriage exists.

  1. A couple must have lived together a certain amount of time (varies by state).
  2. Both parties must have the legal right to marry. This includes:
  • Both must be the minimum age to marry (varies by state)
  • Both must be of sound mind (having the mental capacity to understand the nature of making a marital commitment)
  • Both cannot be married to someone else.
  1. Both parties must intend to be married
  2. Both must hold out to family members and friends that they are a committed couple. This may include:
  • Taking the same last name
  • Referring to each other in public as “spouse”, “husband” or “wife”
  • Holding joint bank accounts and/or credit cards.

States That Recognize Common-Law Marriage

There are ten states and one district that fully recognize common-law marriage. These are Colorado, the District of Columbia, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas and Utah.

Other states partially recognize common-law marriage if it meets certain criteria (these vary from state to state.)

  • New Hampshire recognizes common-law marriage for inheritance only.
  • State agencies, courts and legal scholars in Oklahoma can’t agree on whether common-law marriage is still legally recognized.
  • Other states, such as Alabama, Georgia, Ohio, Pennsylvania and South Carolina, have abolished common-law marriage but will still recognize them if they were entered into before the date they were barred.

There are many variations in common-law marriage laws. For this reason, employers should seek legal counsel if a question related to common-law marriage arises.

Common-Law Marriage Leave and Benefit Rights

Perhaps the most typical application of common-law marriage law relates to the Family and Medical Leave Act (FMLA). Under FMLA law, employees have the right to take leave to care for a spouse who has a serious illness or health condition. The definition of “spouse” under FMLA regulation includes a common-law spouse.

Although most states have abolished common-law marriage, employers still need to consider the law when employees want to take leave to care for a significant other. This is because an employee that formed a common-law marriage before their state abolished it would be considered married and entitled to spousal leave under FMLA.

One of the criteria that most states include for a common-law marriage indicates intent and consent. For this reason, many employers request documentation from employees before approving their common-law spousal leave. This could include a signed affidavit that highlights all the legal elements required to meet the criteria of a common-law marriage.

Under FMLA, employers have the right to require reasonable documentation of a legal relationship, regardless of the type of family relationship.

Here at Lanier Upshaw, we recognize the importance employee benefits play in your business. Our experts focus on all components of an employee benefits program. Contact us today to learn more.