Mike and Brittany lived together on base for a decade. They considered themselves a married couple in every way, but never had a formal wedding. When Mike unexpectedly passed away, Brittany discovered that their lack of a marriage certificate could prevent her from accessing certain military spouse benefits after a death. Their situation highlights the complexities of common law marriage, especially within the military context. This article explores the concept of common law marriage, military recognition, and how to establish this type of union.
First…what is common law marriage?
Have you ever come across the term “common law marriage”? Or maybe you’ve heard of a “military” common law marriage? Either way, in essence, a common law marriage (military or not) is a relationship where a couple is considered legally “married” by state law, even if they are not officially married through a wedding ceremony or a marriage certificate. For instance, Mike and Brittany have been living together for 20 years without ever formally tying the knot. They live on base in Colorado (a common law marriage state) and meet Colorado’s requirements for a valid common law marriage, which means they may receive certain legal rights similar to any other traditionally married couple.
Why does common law marriage exist, and why would someone want one?
The origins of common law marriage trace back to the necessity of protecting vulnerable individuals in relationships. Traditionally, it was usually women, and it was meant to protect those wives who had conducted themselves as spouses (in good faith). While less prevalent today, many states are moving towards the abolition of common law marriage because it’s simply not necessary anymore–obtaining a marriage license is relatively cheap (can be as cheap as $20 in some locations), and it’s relatively easy to obtain. Nonetheless, a handful of states still recognize common law marriages. Establishing such a marriage can prove beneficial for purposes like inheriting assets after a partner’s death, dividing assets in case of separation, and accessing marital benefits like insurance.
Does the military recognize a common law marriage?
The question of the hour! The answer is “yes…” but there are some stipulations. The military will generally recognize your common law marriage if you complied with the laws of the state where you lived when you “got married” or when you/your partner gained the right to military benefits. For example, common law marriage is permitted in Colorado and Texas. Let’s say you live on base in Texas as a member of the Armed Forces. If you can establish a legitimate common law marriage in the eyes of Texas law for establishing common law marriage, then the military will also recognize your marriage.
However, the key to establishing your marriage under your state law varies from state to state. What may be establishing a marriage in Colorado may not be the same in Texas.
Real life example
In Burden v. Shinseki, Mr. Burden was a veteran of the Vietnam War and served in the U.S. Army for 20 years. He married Mrs. Burden in a ceremonial wedding on April 27, 2004. Unfortunately, Mr. Burden passed away just two months later, on June 30, 2004. In August of the same year, Mrs. Burden applied for DIC benefits from the VA. However, her application was denied by a regional office because she hadn’t been married to Mr. Burden for at least one year before his death, as required by law.
In response, Mrs. Burden said she and Mr. Burden had a common law marriage as they had been living together as if they were married for five years before he died. She gave the VA a few statements from people who knew them, backing up her claim. Even after the VA rejected her again, Mrs. Burden appealed to the Board of Veterans’ Appeals. She gave them more proof, like a ticket from a church event in 2001 with both their names on it and a statement from a friend who said they lived together like a married couple for six years before Mr. Burden passed away.
The result? The US Federal Court of Appeals concluded that “For purposes of obtaining DIC benefits, the validity of a marriage is determined ‘according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued.’” Burden v. Shinseki, 727 F.3d 1161, 1166 (Fed. Cir. 2013). Because the Burdens were residents of Alabama, the VA had to apply Alabama law in determining a common law marriage. Thus, since the VA was required to apply state law, in this case, Mrs. Burden did have enough proof to establish a common law marriage under Alabama law, so she was entitled to the DIC military benefits.
Key requirements of military recognition of common law marriages
To reiterate: each state establishes its own regulations concerning common law marriage. Certain states completely disregard this concept, rendering common law marriage invalid. In other states, common law marriage is acknowledged but with significant limitations. Conversely, a few states fully recognize and validate common law marriage.
With that said, there are still some elements that overlap across states that recognize common law marriage in some capacity.
- An agreement to be married, whether explicit or implied,
- Living together for a period of time (cohabitation), and
- Acting as a married couple to the public.
These are three common requirements that many states necessitate to validate a common law marriage. It’s essential to note that these standards may vary by state, so it’s advisable to consult your state’s laws to confirm the criteria for establishing a common law marriage.
The bottom line
In conclusion, common law marriage can be a complex and nuanced concept, especially within the military. While some states recognize it, others do not, and the requirements for establishing it can vary significantly. Understanding the specific laws of your state is crucial if you and your partner are in a potential common law marriage and want it to be recognized. If you’re unsure of your situation, seeking legal counsel is always advisable. By being informed on the laws, both military members and their partners can protect their rights and access the benefits they deserve.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: [email protected]
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