Common Law Marriage: Does Minnesota Recognize It?

The State of Minnesota and Common Law Marriage

Under the common law tradition, a couple would be considered married when they met certain criteria. They must have the legal capacity to marry, mutually agree that they are married, and hold themselves out to be married to third parties. In addition, in most states, the couple must also live together for a prescribed period of time. The precise definition of common law marriage varies depending on state law. Before the mid-20th century, a number of states had such laws, but most of them have since abrogated them, leaving only a handful of states where common law marriages are still recognized. (Common law marriages entered into before the abrogation of these laws are usually "grandfathered in" and still recognized, but that varies by state . ) In some states, such as Alabama and Colorado, a common law marriage is created when the couple agrees to be married and fulfills the residence requirement. Conversely, in some states, the creation of a common law marriage is more stringent either due to restrictions on marriages between people of the same gender or on account of the limitations imposed by the age of the parties, a former disqualification, or an existing matrimonial status. These restrictions do not foreclose the possibility that a same-sex or underage common law marriage may be valid if, for example, the couple traveled to another state where such marriages are legal. If you enter into a common law marriage in a jurisdiction that recognizes it, you will likely be considered legally married in all states, even those where common law marriage is not recognized.
Minnesota does not recognize common law marriage.

What Are Your Options in MN Other than Common Law Marriage?

There are alternatives to marriage and common law marriage in Minnesota. Unmarried individuals that refer to their relationships as a domestic partnership typically do so to describe long term cohabitation. However, as discussed in other sections of this blog, Minnesota no longer recognizes common law marriage. So if you’re in a domestic partnership with no marriage, you’re not legally married.
Just because there’s no common law marriage in Minnesota doesn’t mean that relationships of unmarried couples can’t be legally protected. Cohabitation agreements between unmarried couples can provide rights and protections to each party. A cohabitation agreement is similar to a prenuptial contract or a post-nuptial agreement in the sense that the parties (now unmarried) enter into the agreement in order to clarify the legal status of their rights in the event the relationship ends, whether officially through divorce or separation, or in another manner.
We can either enter into a cohabitation agreement at the time the relationship is formed, or once the relationship is over. But it’s important to know that under Minnesota law, such agreements cannot be enforced if they involve sexual relations outside of marriage.

The Law and Unmarried People

The lack of recognition of common law marriage in Minnesota has important legal implications for unmarried couples living together. Without a legal marriage, individuals cannot inherit from each other, and any assets built up during the course of the relationship may be subject to claims by third parties. For example, in the event that unmarried partners can no longer afford their residence together, their lease will have to be dealt with. Without equity in the home, unmarried couples cannot force the landlord to divide up the lease or release one partner from the obligations. Instead, it will be necessary to pay off the entire lease in order to gain an early termination. Making this a bit more complicated is that, if you have rent in a joint account and both parties are responsible for paying the rent, unilaterally withdrawing funds from the account could raise issues as to which partner actually owns the funds. It can become very complicated very quickly. In addition, there are issues of how the costs should be allocated between the parties, for example, should the other party be able to remain in the home while also having their housing paid for by the non-tenant? These issues are even more complex in the case of a business lease, where both partners have invested capital into the business lease and fittings. Unfortunately, these are very common issues with tenancy when unmarried couples separate. In the case of a person dying, the deceased’s estate will not include any jointly-owned property that would have otherwise passed to the other partner under inheritance laws, because the property legally belongs to the person who is on the title. As a result, there is no provision for the partner left behind to receive property if the other has died unexpectedly. If there is joint tenancy, this will pass to the next-of-kin but the other partner may have a claim for transfer of the property to them under partner’s equity if that partner has inherited the home. In addition, medical issues are complex, and raise issues of potential liability for consent in the event of illness or injury where one partner is identified as the emergency contact. Just as with housing, debt issues are complex, even after a bankruptcy, when there are joint credit cards or lines of credit. The law is not set up to deal with issues of partners simply being in a relationship, and complications and expenses of litigation can be the result.

Creating a Cohabitation Agreement

Living together without marriage may have some advantages for Minnesota couples, but if a couple’s relationship sours, the lack of legal recognition could cause problems for each party. To protect the parties, they might consider establishing a mutual cohabitation agreement to cover subjects like property, debts, and legal responsibilities.
When establishing a cohabitation agreement, a couple should take their time to determine how their property will be divided after their relationship ends. This can be done by listing the specifics of each party’s possessions, including property, cars, investments and bank accounts. The division of debts should also be addressed, with careful detail as to how individual debts were accumulated. For example, some debts might have been taken out in one person’s name, or they might have been secured with a car title or house deed. A cohabitation agreement can help provide some security to each person if things with their partner go awry .
If both parties share a strong emotional bond, they might want to outline how they will deal with major medical decisions in the event that one is unable to make such choices. While this element is not present in a divorce case, it can become a source of conflict when no divorce exists. Addressing such subjects in detail shows that the parties used forethought and prevented the need for bitter disputes. Cohabitation agreements should be enforced to go into effect.
Once the cohabitation agreement is drafted, both parties should review it carefully. If all is well, each party should sign off on the agreement and attach their financial information. In some cases, each party chooses to seek the individual advice of a financial adviser or attorney before signing the document. This step helps to protect both individuals’ interest in the future.
Once signed, the next step is to create a new living trust to ensure the agreements will be upheld. The one exception would be if one person leaves specific items to the other in their will. This option is also preferable when an individual has family heirs who would expect to inherit certain items.

Common Law Marriage Myths

Despite the information above, many individuals and couples are still confused about common law marriage. Here are a few of the common myths:
Myth #1: There has to be a certain amount of time spent living together for there to be a common law marriage.
Fact: While you must be able to show that your relationship is permanent, there are no guidelines on how long you need to be living together. Some people develop common law marriages after having spent only a few months together while others take years.
Myth #2: You have to be legally married in another state for Minnesota to recognize the relationship.
Fact: We know that’s not true. Whatever law applies to the formation of the marriage in the state where it occurred, is the law that governs in Minnesota.
Myth #3: You don’t have to live together to agree that you are common law married. A couple can agree to enter into a common law marriage without actually living together, and once you’re in, you’re in for good.
Fact: A couple can undo the common law marriage.

Obtaining Legal Guidance in MN

While some legal experts argue that Minnesota’s attorney generals’ opinions banishing common law marriage from the state may be mere advisory contentions, as opposed to definitive, enforceable edicts , it is still prudent in today’s legal environment to seek the advice of a qualified attorney when considering such an arrangement. A marriage or covenant that is predicated on a legitimate desire and intent to marry, and not for the purpose of evading Minnesota’s laws or enhancing entitlements under the same, can only be properly evaluated and protected by a dedicated family law attorney.