• Brad Keating

What Is the Common-Law Marriage in Tennessee?


Is Common-law Marriage Recognized in Tennessee?

Is Common-law Marriage Recognized in Tennessee?


Tennessee does not recognize common-law marriage. Without more, cohabiting for years in this state while pretending to be married cannot constitute a genuine marriage contract. Tennessee is in the minority since it has never been a common-law marriage state. This does not prohibit a legal common law marriage registered in another state from being recognized in Tennessee.

What Are the Common-law Marriage States?


In the majority of states, engaging in a common-law marriage was legal. Most states that once permitted couples to form common-law marriages have now outlawed the practice. It is being replaced by formal, conventional marriages conducted by those individuals (pastors and magistrates, for example) who are permitted to marry people. Most recently, the State of Alabama eradicated common-law marriage contracts in January 2017.


Today, just a few states in the country permit couples to engage in a valid common-law marriage. Only Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas, and Utah, in addition to Washington, D.C., recognize common-law marriages. Such weddings are frequently between two domestic partners who openly present themselves as “man and wife” (or present themselves as married) for the required time frame, which is typically a specific number of years, among other conditions. Interestingly, certain Native American tribes still permit the formation of common-law marriages.


For practical convenience and efficiency, recognition of legitimate out-of-state marriages, especially common-law marriages, fits firmly under the concept of civility between sister states. If a marriage is legitimate in the sister state where it was formed and a Tennessee court exercises jurisdiction, the parties may file for divorce in Tennessee.


Online Ordination


Internet-ordained pastors can no longer perform marriages as of July 1, 2019. Members of the Tennessee General Assembly, on the other hand, can. An Attorney General's Opinion issued in 1998 said that marriages officiated by anyone ordained online would not be acknowledged in Tennessee. However, until recently, that opinion has not been mirrored in the legislation.


If You're in a Common-law Marriage, You Can Change Your Name


You don't have to be married to change your name. In theory, several jurisdictions enable you to permanently change your name through usage only—that is, you just begin using your new name without going to court. However, because you do not have a marriage certificate, you may need a legal court order to alter your name before government organizations and many private enterprises, such as banks and title companies, to recognize your new name.

Common-law Marriage Requirements


What evidence of common-law marriage is admissible in court? In supporting his or her case, the spouse who filed the divorce lawsuit from a common-law marriage may present proof of:

  • They are publicly presenting themselves as married, which is part of a common-law marriage;

  • Having the same surname as someone else;

  • a history of submitting combined income taxes;

  • addressing oneself as "husband and wife" or "spouses," which is typical in common law marriage

  • Having children

  • To to be eligible for employer-provided health insurance, the other person must be designated as a "spouse."

  • Filing for bankruptcy as a married couple;

  • Constant cohabitation; another typical practice in common-law marriage

  • Intertwined finances, such as combined bank accounts and real estate ownership;

  • Owning a corporation together; lending money to each other without a promissory note or a security interest in collateral (as in a secured transaction or mortgage);

  • and Other relevant evidence of marital status.

Understand that a legal common-law marriage is not inferior to a civil marriage. Whatever stigma there may be in some social circles, a common-law marriage has all the advantages and disadvantages of traditional marriages entered pursuant under Tennessee statutory law.

Why Do Today's Marriages Necessitate a License, Solemnization, and a Recording?


In the past, far too many records were incorrect, misplaced, or deleted. People can access government-certified vital records of a marriage license through this centralized approach. The Tennessee Department of Health, Office of Vital Records, documents birth certificates, death certificates, and divorce records in the same way.


What If You Do Not Want Your Relationship to Be Recognized as a Valid Common-law Marriage?


If you reside together in a state that realizes common-law marriages and don't want to be married, it's a smart option for you both to sign a living together contract (also known as "cohabitation property agreements") outlining your proposals for keeping property independent and/or joint and rescinding any right to continuous financial support. It is mandatory that you do this if you use the same last name and/or combine properties. Otherwise, a court may subsequently determine that a common-law marriage occurred, which can have an impact on property rights and, in some places, the right to child support.


What Rights Do Unmarried Couples Have?


In general, unmarried cohabiting couples do not have the same rights as married people, especially when it comes to property accumulated during a partnership. Marital property rules and other family regulations relating to marriage do not apply to unmarried couples, even if they have been together for a long time. Unmarried cohabitants' property ownership is less obvious than that of married couples, whose property ownership is regulated by marital and community property laws.


Some property purchased by unmarried couples may be owned jointly; however, dividing such property when the relationship ends may be problematic. In the absence of a written agreement, a couple who cohabits is under no responsibility to provide financial support to one another. If you are financially dependent on a romantic partner and the relationship fails, the consequences can be far-reaching.


Is It Possible for an Unmarried Couple to Establish Rights as a Couple?


Living together, or cohabitation, in a non-marital relationship does not immediately provide either party any rights in the other person's property earned during the cohabitation time. Adults who freely reside together and engage in sexual activities, on the other hand, may enter into a cohabitation property agreement to establish the parties' individual rights and duties about their income and property gained from their income during the non - marital relationship.


While the individuals to a non-marital cohabitation agreement cannot legally contract to pay for sexual services, they can consent to pool their wages and hold all property gained during the partnership separately, jointly, or under community property rules. They may also decide to share merely a portion of their profits and assets, form a partnership, joint venture, or joint enterprise, hold property as joint tenants or tenants in common, or make any other agreement.


Estate planning and medical services are two further legal difficulties that may impact cohabiting couples. In general, anyone who cohabits with another is not regarded as an heir under the law and does not have the same authority to make healthcare decisions as a spouse. As a result, unmarried cohabitants should think about inheritance preparation and power of attorney in addition to a non-marital arrangement.


Estate courts have established a trust created in the property of one person who cohabits with another, whereby the property is regarded held for the benefit of their domestic partner in some circumstances of people who formerly lived in the same house. Even though there is no formal trust arrangement, a resultant trust may be established in certain situations to uphold cohabitation agreements concerning the property and income of domestic partners.


The court may determine that a resultant trust exists if there is an indication that the parties meant to create a trust but the formalities of a trust are missing. Courts may also proclaim the existence of a constructive trust, which is simply a legal fiction meant to avert injustice and prevent one of the parties from gaining an undue advantage. This could be based on one partner's payments to the property of the other. Each case is determined on its own merits, taking into account all circumstances.

How Is Divorce Recognized in Tennessee?


Palimony

Palimony refers to financial support for a life partner with whom you were never married. Sometimes two individuals dwell together for a long time. One may be the principal wage earner, while the other has never worked outside the home. If they decide to live apart, the individual who stayed at home may wish to seek financial assistance akin to what we would consider alimony in a typical marriage.


Like online ordination and common-law weddings, palimony is not recognized in Tennessee. You cannot claim financial assistance just because you lived together.


The term, palimony refers to financial support for a life partner with whom you were never married. Sometimes two individuals dwell together for a long time. One may be the principal wage earner, while the other has never worked outside the home. If they decide to live apart, the individual who stayed at home may wish to seek financial assistance akin to what we would consider alimony in a typical marriage. Unfortunately, palimony, like online ordination and common-law weddings, is not recognized in Tennessee. You cannot claim financial assistance just because you lived together.


Divorce Law Does Not Apply


If you are not married, you are not eligible for divorce proceedings unless you live in a common-law marriage state or a state that permits domestic partnership. There's still a possibility you simply wouldn't be able to get a divorce in certain states.


Tennessee does not acknowledge common-law marriages, however, Tennessee recognizes common-law marriages from other states. If the couple resided together as common-law husband and wife in another jurisdiction that recognized common-law before moving to Tennessee, it is accepted.

Separate Property


Unless you have opened joint banking or investment accounts, own a home that is titled in both of your names, or otherwise title property jointly, the general rule is that each of you owns your own sole and separate property. A one-half ownership interest is presumed on a jointly titled property, but that presumption might be overcome by a strong showing that one of the parties made a disproportionate contribution.

Separate and Sole Property - The General Rule for Unmarried Couples


Any property that is co-owned is deemed to have a one-half controlling interest. However, a court may disregard or ignore that rule if it can be demonstrated that one of the parties made a disproportionate contribution to the ownership of the property. Otherwise, it is assumed that an unmarried pair has distinct and sole property, which might include a combined bank account, investment accounts, or a residence belonging to both persons.


Unmarried couples like you may enter into a cohabitation agreement, which is akin to a prenuptial agreement, in some partnerships. These agreements can be formed to establish standards for how various properties and assets are handled or distributed in the event of a future divorce.


In your cohabitation property agreements, a dispute resolution provision, which is the word for the phrase that helps determine what the parties wish to do with the co-owned assets in the event of divorce, should reflect liability for debts. Anything pertaining to the property's succession should be represented in the form of a will or living trust.


Important note: If you and your partner own a home together, pay close attention to a buyout or selling agreement.


If you have any further questions regarding being an unmarried couple and sharing property, visit a specialist to determine what actions you should take next as well as for any legal advice.


Is Tennessee a Community Property State?


Tennessee is not a state that recognizes common property. It is an equitable distribution state when it comes to the allocation of marital property in a divorce. Equitable distribution means that property is split evenly based on a list of statutory factors.


Therefore, when it comes to the split of debts between married or divorced couples, the bills your spouse owes are determined by whether you share a bank account or not. In other words, if your name and your spouse's name are both on a joint bank account or credit card, you are both liable for any debt incurred.


This implies that if you or your spouse misses a payment due or fails to pay off the debt in time, both of your credit scores may suffer. Simultaneously, you both have the chance to enhance your credit scores by paying all of your payments on time. You may find solace in the knowledge that the common law state of Tennessee likewise states that you are not liable for any credit card debt incurred solely in the name of your spouse.


What about Your Children?


Your divorce court system's family law section would handle any concerns with child custody, child support, and visitation. In Tennessee, the Juvenile Courts have wide jurisdiction over unmarried couples' child custody, maintenance, and visitation.


All other disagreements would typically be addressed by a separate action or petition in the General Sessions Courts (depending on the level of damages and type of property in disagreement); thus, instead of a single court case that would resolve all concerns, un-married couples may face multiple court cases to acquire relief, often lengthening and rising the cost and time of recovery.


How long Do You Have to Be Together to Be Common-law Married?

How long Do You Have to Be Together to Be Common-law Married?


Don't believe anyone who tells you that if you're single, you have the protection of being a common-law wife. Or even a husband. There isn't anything like it. Therefore, there is no set amount of years for you to be common-law married.


Nowhere do the legal rights of married and unmarried couples diverge more than when one of the parties dies without leaving a will or living trust that provides for the needs of the surviving party. If the parties are married, the surviving wife or husband should receive the entire estate or at least a portion of it. However, if the parties never married, the situation is significantly different, and the surviving party may wind up with nothing if no will is created.


Which States Recognize Common-law Marriage?


There are only a few states that allow "common law marriage." Some of them include common law marriage in their legislation, while others rely on judicial rulings to do so. The common-law states are as follows:

  • Colorado

  • Iowa

  • Kansas

  • Montana

  • New Hampshire

  • Oklahoma

  • Rhode Island

  • Texas

  • Utah


It is worth noting that the District of Columbia, despite not being a state, allows for common-law marriages.


There are a few things you should be aware of concerning the above list. Because of the way the law is worded in New Hampshire, the state only recognizes common-law marriage for estate matters. In other words, the common-law marriage does not exist lawfully until one of the couples dies, at which point the surviving spouse can receive any inheritance.


In Oklahoma, the statutory provisions and case law appear to contradict each other when it comes to the constitutionality of common-law marriage. On the surface, the statutes appear to allow only official marriages. Despite the wording of the statutes, courts have upheld common-law marriages. At this point, it is unclear how this disagreement would be resolved.


In Rhode Island, the courts have made it quite plain that common-law marriage is an "outmoded doctrine," and they have essentially pleaded with the legislature to do away with it. So that is something to keep a close eye on.

For more information regarding Tennessee laws like car seat laws or Nashville personal injury claims, contact an experienced lawyer at The Keating Firm.