Do you need to get divorced after common law marriage in Montana?Marybeth Sampsel
Montana law recognizes common law marriage, which is a marriage formed without a license and solemnization. In order to have a valid common law marriage, three elements must be present:
(1) The parties must be competent to enter the marriage. The competency requirements for common law marriage are the same as those in a traditional marriage. The parties cannot be related to a certain degree, cannot already be married, cannot be members of the same sex and must have the mental capacity to enter into a marriage relationship.
(2) The parties must have entered into the marriage by mutual consent and agreement. This means that at the time the marriage relationship was created, both parties agreed and consented to be a part of it. It does not mean, however, that a party can simply decide to no longer be common law married. If you and your partner agreed and consented to common law marriage, you cannot just withdraw from the marriage after created. Instead, the parties to a common law marriage must go through a divorce in the same way a couple that married through a ceremony would.
(3) The parties must confirm the marriage by cohabitation and public repute. In other words, the couple must hold themselves out as a married couple. To determine whether a couple has held themselves out as married, the Montana Supreme Court has considered a number of things including, but not limited to, exchanging rings, taking the partner’s last name, filing joint tax returns, referring to one another as “husband” and “wife,” and filing out documents or forms as husband and wife.
Contrary to popular belief, there is no magic period of time that people living together are automatically assume to be common law married. Montana law requires the existence of all elements. As such, living together for a number of years, but not holding yourselves out as married, will not automatically result in a common law marriage.
A Common Law Marriage is a REAL marriage, meaning it requires a divorce/dissolution to terminate the relationship. The parties to a divorce based on common law marriage are dealt with exactly as they would be if they had a traditional marriage. Occasionally, if parties disagree whether or not they were common law married, the court will have to make a determination whether or not a common law marriage existed. Upon death of one party, the surviving party to a common law marriage has the same right with regard to inheritance than any traditional spouse would have.
In Montana, a couple can complete an Affidavit of Common Law Marriage to remove doubt as to whether or not a couple was common law married. Completion of the Affidavit would provide presumptive evidence if the marriage were later disputed.