Common Law Marriage in Kansas

How do I establish a common law marriage in Kansas?

Kansas is among a minority of states that continues to allow common law marriage. Kansas recognizes existing common law marriages that were established while the spouses were living in another state, provided that those marriages meet the legal standards required by the other state. New common law marriages which began while the spouses lived in Kansas are also legally valid.

If you're living in Kansas, you need to meet a number of requirements before you can prove you're in a common law marriage.

• First, both parties must have the capacity to marry, meaning that there's no legal impediment, or bar, to the marriage. This essentially means that the spouses can't be closely related, can't be married to someone else, must be old enough to marry, and must have the mental and physical ability to marry.
• Second, the parties have a "present agreement" to marry. A present agreement to marriage doesn't have to take any particular form and no writing is required. What's necessary is that two people intend to be spouses. A present agreement to marry can be inferred either from the behavior of the two people involved or the way in which they mutually recognize each other as spouses.
• Third, the parties "hold each other out" to their family, friends, and the community as a married couple. This means that the couple does and says things that puts others on notice that they believe they're spouses. If the couple has a general reputation as being spouses in a marital relationship, that's enough to satisfy this requirement.

There are a variety of behaviors that partners can exhibit that show they are "holding themselves out" to others as a married couple. For example:

• They can characterize each other as "husband," "wife," or "spouse" when talking to other people.
• They can sign documents reflecting that they're married.
• They can file joint tax returns.

There's no minimum time that couples have to live together ("cohabitation") before they have a valid common law marriage.

What is not a common law marriage?

Sometimes people assume they're automatically involved in a common law marriage because they live together or have children together. However, neither of those two facts is enough to establish a common law marriage. You can live together for a long time or have children together without being a common law spouse. To be in a real common law marriage, you must be able to prove all the legal elements.

If your relationship is based on friendship instead of romantic feelings, you aren't in a common law marriage, which is reserved for relationships that embody an intent to be part of a marital relationship. Likewise, if you or your partner are hoping to be married "someday," or if you just aren't sure you're married, then you don't have a common law marriage because you don't yet have a shared intent to be married.

Just because you don't have a common law marriage, however, doesn't mean that Kansas law doesn't protect you. For example, if you're in a romantic relationship that doesn't meet the threshold for marriage, but you and your partner have children together, you still have the right to go to court and ask a judge to make decisions about your children's paternity, custody, visitation, health insurance, and child support. If you and your partner have other disputes that don't involve children, Kansas tort and contract law might offer remedies. And if you're a victim of domestic abuse or violence, you're still entitled to legal protection.

What is the legal effect of common law marriage?

Other than the way they come about, there's no difference between a common law marriage and a ceremonial marriage. Both end only upon divorce or death. If you're a common law spouse, it doesn't matter that you haven't had a wedding— you can't end the relationship by simply walking away. You'll have to go through a formal divorce, just like any other married couple.

This cuts both ways, though. If you're in a common law marriage, you have all the rights available to traditionally-married couples. And if your marriage ends, and you end up in a divorce, the same family law statutes that govern alimony and the division of property (among other things) will apply to you. But if you're not married, you don't have the benefit of those rights.

How can you prove that you're in a common law marriage in Kansas?

If you're called upon to prove that you're in a common law marriage, it won't be as simple as providing your marriage license. The burden of proof to establish a common law marriage is always upon the person who asserts it. Yet sometimes, for practical purposes, you'll need a mechanism to show that you and your spouse have a common law marriage. The Attorney General for Kansas has prepared an Affidavit of Common Law Marriage which is a sworn statement that you and your common law spouse can fill out if you want to name each other as dependents.

Some states do not recognize common law marriage. If you're planning to move away from Kansas, or if you have any other questions about your situation, regardless of whether you're already in a common law marriage, please contact an experienced family law attorney for advice.