Does California Recognize Common Law Marriage?

By , Attorney

There's a popular misconception that if you live with your partner for a long time, you're married through a "common law marriage" with the same rights and responsibilities of legally married couples. But in most states, including California, this isn't true.

In just a handful of states, couples who act like they're married, hold themselves out to the world as though they're married, and intend to be married may be considered legally married through common law marriage, but California isn't one of them.

In California, you need to get a marriage license and exchange vows in a ceremony - either civil or religious – in order to be legally married. Although common law marriage isn't legal in California, unmarried partners may assert some of the same rights as divorcing spouses when they break up.

"Palimony" Claims in California

Generally speaking, the California community property rights and obligations that would normally accrue for married couples don't exist for unmarried partners. However, under the well-known Marvin v. Marvin case, unmarried couples who live together and meet certain requirements (spelled out below) may make marital-type claims for property and financial support after they break up, often called "palimony" or "Marvin" claims.

In Marvin, actress Michelle Triola Marvin sued actor Lee Marvin for financial compensation similar to what's available under California community property laws. Even though they had never married, she wanted financial support and one-half of the $3.6 million Lee earned during their six years together. The California Supreme Court held that Michelle could file suit against Lee based on their long time, live-in relationship. Ultimately, Michelle lost her financial claim because she couldn't prove they had an implied contract (agreement) to share property or for Lee to pay support, but her case paved the way for future "Marvin" lawsuits.

Generally, in order to succeed in a Marvin suit, you'll have to prove that you and your partner had a written agreement or implied understanding to share your property and earnings and/or that one person would provide financial support to the other; here are the two most common ways to prove this:

An action for breach of a written contract.

If a couple has a valid, written agreement to share property or provide support, that contract should control the outcome of their case. The next step would be for the couple to figure out specific items and amounts for property division and support. If they can't agree on the numbers, they can hire attorneys or financial experts to do this. If there are problems with the contract, or if either person contests it, then a judge can decide these issues in court.

An action for an implied contract.

An implied agreement is much harder to prove than a written promise. An implied contract for property or support has to be found by looking at the parties' conduct. Did they act in a way that proves they agreed to share their earnings and property? Did one partner support the other throughout the relationship and promise that the financial support was going to continue after they broke up, or even after the partner providing support passed away? In making these findings, courts will consider a variety of evidence, including:

  • Reasons why the parties didn't marry - was it to avoid community property rights?
  • Banking practices - joint versus separate savings and checking accounts.
  • Credit practices - did they use joint credit cards? Who paid off the cards? Did they apply for loans jointly and accrue debt together or individually?
  • Did they pool their money together to purchase property?
  • Did they take title together or separately?

Courts will also look to see whether the couple had a stable, marriage-like relationship, where they were living together (at least part-time), and acting as mutual companions.

One way to avoid a Marvin lawsuit is to enter into a "Living Together Agreement" – similar to a prenuptial contract – which dictates what will happen to the property you acquire during your relationship and whether either partner can request financial support in the event of a split.

Do Unmarried Parents Have to Pay Child Support?

Yes. In California, parents have a mandatory legal duty to support their children, regardless of whether they are (or ever were) married to each other. The right to child support belongs to the child, not the parents. Child support issues may be litigated in court through a parentage action or through a motion for child support, which can be filed by a parent or the state. The California Department of Child Support Services can open a child support case on behalf of a child and provide the following services:

  • locating a parent
  • establishing paternity
  • establishing, modifying and enforcing a court order for child support, and
  • establishing, modifying and enforcing an order for health insurance coverage.

Child support in California is calculated by using state "guidelines," which are calculations based on both parents' incomes and the amount of time each child spends with each parent. For more information, see Child Support in California.

Do Unmarried Parents Have Custody Rights?

Similarly, unmarried parents have the same custody rights and obligations as married parents, as long as there is no question about paternity of the children. Custody will be determined based on what's in the children's best interests. For more information, see Legal and Physical Custody in California.

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