West Virginia Common Law Marriage

What Is Common-Law Marriage in West Virginia?

A common-law marriage occurs when a couple lives together for an extended time and presents themselves to people as married, without holding a formal ceremony or obtaining a marriage license. It generally requires:

A positive mutual agreement to enter into a marriage relationship
Cohabitation for a specific period
The assumption of marital duties and obligations

People who want to skip the formalities and costs of a ceremonial marriage usually choose common-law marriage. Common-law marriage is terminated in the same manner as a ceremonial marriage.

Common-law marriage is permitted in certain states by statute or judicial decree. These states include Colorado, Kansas, Montana, New Hampshire, South Carolina, Texas, Utah, and Rhode Island. Each of these states has its criteria for allowing common-law marriages. When a state permits or recognizes common-law marriage, the couple is entitled to the same rights and benefits as individuals who are married in a formal marriage. They are as follows:

The right to divide marital property
Coverage for health insurance under the partner’s policy
The right to make health care decisions on behalf of the partner in the absence of a valid Health Care Directive
Custody rights for children
Visitation privileges in jail
Tax returns filed jointly
Alimony for rehabilitation
Inheritance rights in the event of a partner’s demise

However, there are some disadvantages to common-law marriages, such as:

Common-law marriages are usually challenging to prove, particularly when there is no written agreement to show the intention to form the marriage
The party that claims the marriage exists usually has the burden of proving that claim
The marriage can lead to the loss of survivorship rights

To form a common-law marriage in a state where it is permissible, the couple must meet the state’s requirements. The requirements usually include being of legal age and living together for a certain amount of time.

Marriage in West Virginia

The marriage rate in West Virginia was 6.1 marriages per 1,000 residents in 2018. The divorce rate in the state was 3.6 per 1,000 married couples in 2019. Over half of West Virginia’s population is married. A survey of the population aged 15 and up revealed that in West Virginia, 51% of females were married compared to 52% of men. In the female demographic, 13% were separated or divorced, compared to 12% in the male demographic.

Does West Virginia Recognize Common-Law Marriage?

Common-law marriages are not allowed in West Virginia. The state only recognizes a common-law marriage contracted in a state where such a union is allowed to be formed. This is done by the constitution’s Full Faith and Credit Clause, as long as the marriage does not violate any law in West Virginia. Therefore, a couple married under common-law in a state that allows the contracting of common-law marriages will be considered legally married in West Virginia.

Apart from common-law marriages, there are generally few legal options for couples who prefer non-marital relationships in West Virginia. The state does not provide for civil unions or domestic partnerships. Cohabitation agreements are the only form of non-marital relationships that are enforceable in West Virginia.

What is a Cohabitation Agreement in West Virginia?

A cohabitation agreement (or non-marital agreement) is a legal document that protects the rights of the couple and guarantees financial security for the couple. It is a contract negotiated between the parties and spells out the obligations of each person. While it may be written or oral, for ease of proving the existence of the agreement, it is best that the agreement is in writing.

The following are some of the matters that may be negotiated in a cohabitation agreement:

Property and debts owned by each individual prior to moving in together
Contributions made by each partner while living together
When a couple divorces, how do they divide their common property?
What to do with any joint debt if the couple divorces?
Will alimony be paid if the couple divorces?

A cohabitation agreement can be made between same-sex or opposite-sex couples. Also, it can include whatever the parties believe is necessary to protect their respective interests. It will be easier to divide and share property and obligations through a cohabitation agreement where a partner dies or seeks termination of the agreement.

What are the Requirements for a Common-Law Marriage in West Virginia?

The state of West Virginia does not permit the formation of common-law marriages in its jurisdiction. It only recognizes common-law marriages formed in states where they are legal. Non-marital relationships, such as domestic partnerships and civil unions, are also not registered in the state. Cohabitation agreements are the most common type of enforceable non-marital relationship in the state.

How many years do you have to Live Together for Common-Law Marriage in West Virginia?

Since West Virginia does not permit common-law marriages, the duration of how long a couple has lived together under the guise of marriage is not relevant. They will not be considered married in the state. This means they do not have the same rights and benefits as persons formally married in West Virginia. Cohabitation agreements can be considered by spouses who do not intend to have a formal marriage.

What Does it Mean to be Legally Free to Marry in West Virginia?

To be legally free to marry in West Virginia implies that a person (and their partner) has fulfilled all state requirements to get married. These requirements are provided for in W.V. Code §48-2 include:

The couple must be over the age of 18. If they are between 16 and 17 years, they must meet marriage requirements and obtain parental/legal guardian permission
The couple must not be blood relatives or be engaged in a relationship prohibited by W.V. Code §48-2-302
The couple must not be in another marriage or recognized non-marital relationship in the state.

A marriage license is also needed to be legally free to marry in West Virginia.

What is Intent to Marry in West Virginia?

According to W.V. Code §48-2-101, obtaining a marriage license to solemnize a marriage establishes intent to marry in West Virginia. Without it, a marriage is void. County clerks issue marriage licenses in West Virginia. It does not matter if the couple resides in the county or state. However, out-of-state residents cannot apply for marriage licenses where the marriage will not be legal in their home state.

Although the requirements for obtaining a marriage license in West Virginia is dependent on the county clerk, the following are requirements are common across most counties:

Complete and sign the marriage license application in person at the clerk’s office. It may be by appointment. The application form requires information such as the full names of both parties, their Social Security numbers, dates of birth, places of birth, and residential addresses.
Provide valid means of identifications with proof of age
Pay the application fee of $56 through the acceptable means of payment (sometimes discounts are provided for persons who participate in a premarital education course done in the county)
Present Social Security Numbers
Information about each partner’s parents, including their names and place of birth

Also, where one of the parties was in a previous marriage, documents are required to prove that the marriage has been dissolved, either by death or divorce. This may be a divorce decree or death certificate.

Marriage licenses are issued while the couple waits. Once issued, the marriage license immediately becomes effective. It is valid for 60 days and can only be used in West Virginia.

What is an Informal Marriage in West Virginia?

Common-law marriages are called informal marriages in Texas. West Virginia does not allow the formation of common-law marriages within its border. Hence, informal marriages cannot be formed within West Virginia. However, the state will recognize informal marriages validly contracted within Texas.

How Do You Prove Common-Law Marriage in West Virginia?

A party to a common-law marriage may be required to prove the existence of the marriage. It may be to exercise certain rights or enjoy benefits such as child custody or visitation claims, divorce entitlements, insurance claims, or property inheritance claims. To prove common-law marriage, the alleging party will have to provide evidence to support the claim. The evidence must prove the following:

The couple cohabited in another state jurisdiction
They had the intention to be married
They held themselves out to the public as a married couple
The state must have common law marriage laws and requirements
The cohabitation period must have followed the requirements of that state

The best evidence is a written agreement that shows that both parties agreed to the marriage. The absence of a written agreement means that testimonies of witnesses and other supporting documents will be used to prove the marriage. Various supporting documents can be used, including:

Bills or charges for shared utility accounts such as gas, phone, and electricity
Driver’s licenses and identification documents proving that the spouses share the same address
Important documents proving that one partner adopted the surname of the other
Joint tax filings
Joint utility accounts
Documents that show that the couple assumed joint financial obligations, such as loan documents, mortgages, or promissory notes
Mails sent to the parties as a couple
Policies or retirement plans in which the other partner is named as a beneficiary
Rental agreements or joint leases
Their children’s birth certificates, which mentions the couple as parents

The testimonies of family members, members of the community, or co-workers can also be relied on to prove a common-law marriage.

Third-party websites provide an alternative to obtaining public vital records. These non-governmental platforms come with intuitive search tools that help simplify the process of accessing single or multiple records. However, record availability on third-party sites tends to vary because they’re independent of government sources. To obtain public marriage records, requesters may need to provide:

The full name of both spouses ((include first, middle, and last names)
The date the marriage occurred (month, date and year)
The location where the marriage occurred (city and county)

How Do You Prove Common-Law Marriage in West Virginia After Death?

After the death of one party, a signed agreement between the two parties in a common-law marriage can be used to prove the marriage. It is important that the marriage was formed in a state that permits common-law marriages. In the absence of a signed agreement, the surviving partner can present supporting documentation that shows elements of cohabitation and intention to marry by assuming marital obligations. The surviving partner can also rely on testimonies of relevant persons, like family members, co-workers, or neighbors.

Third-party websites may provide a convenient solution to obtaining marriage-related public records. These non-governmental platforms come with intuitive search tools that help simplify the process of accessing single or multiple records. However, record availability on third-party sites tends to vary because they’re independent of government sources. To obtain public marriage records, requesters may need to provide:

The full name of both spouses (include first, middle, and last names) The date the marriage occurred (month, date, and year) The location where the marriage occurred (city and county)

Do Common-Law Marriages Require a Divorce?

Common-law marriages recognized in West Virginia can only be dissolved by a divorce. According to W.V. Code §48-1-221, a divorce is the judicial termination of a marriage in the state. Divorces are filed at family courts or circuit courts within the county of residence of the couple. The couple usually requires the court to divide their properties, decide custody and child support arrangements, determine if a spouse should receive alimony, and other relevant issues that will arise from the divorce. Usually, before going to court, the couple can negotiate the divorce terms. However, the court will determine any unresolved issues. Once a final divorce decree is given, each party becomes single and is free to remarry.

Divorce in the state can be no-fault or fault-based. Under W.V. Code §48-5-201, a no-fault divorce occurs where the spouses seek a divorce without alleging any wrongdoing. Rather, the divorce is because of irreconcilable differences. To file a no-fault divorce, both parties must agree to it in writing.

Where the parties cannot reach an agreement or one party rejects the no-fault option, there are eight fault-based reasons for the divorce. They include:

Living separate from one another for at least one year;
Cruel treatment;
Adultery;
Drug or alcohol addiction of one party;
Where one party receives a felony conviction;
Where one party suffers from permanent and incurable insanity;
Where one party abandons the other spouse for at least six months; or
Where one party abuses or neglects the couple’s child or a stepchild.

Does a Common-Law Wife Have Rights in West Virginia?

Where a common-law marriage is recognized in West Virginia, the couple possesses the same rights as persons in formal marriages. Therefore, a common-law married wife can exercise the same rights and enjoy the same benefits as a wife in a formal marriage. The same goes for a common-law husband. These rights include claims to marital property, child custody, and visitation rights upon death or divorce.

Can a Common-Law Wife Collect Social Security in West Virginia?

Forming a common-law marriage in a state with common-law marriage laws qualifies the married couple to Social Security benefits. They must pass the validity requirement and provide proof of the marriage by submitting a Statement of Marital Relationship Form and an additional statement from a blood relationship. The marriage must be recognized in the statement. The following information is required from the couple:

When they started living as a couple
The address of where cohabitation began
The duration of cohabitation
The locations where the couple has resided together
If they had any children
The couple’s previous names (if changed)

Are Common-Law Wives Entitled to Half in West Virginia?

In West Virginia, common-law wives are not entitled to half of the couple’s marital property. Property division in West Virginia is done by equitable distribution. The court only divides the couple’s marital property and excludes separate properties from the division. According to W.V. Code §48-1-233, marital property includes all property acquired by either party during the marriage and any increase in value of their separate property. W.V. Code §48-1-237 defines separate property to include:

Property acquired prior to the marriage;
Property gotten during the marriage in exchange for separate property which was acquired prior to the marriage;
Property obtained during marriage, but excluded from treatment as marital property by an agreement of the parties;
Property obtained party during the marriage through means like gift, bequest, devise, descent or distribution;
Property gotten by a party during a marriage but prior to the parties’ separation and before a divorce, annulment, or separate maintenance is granted;

If the parties have a separation agreement, the division of the marital property by the court will be done in accordance with the agreement. In the absence of a separation agreement, the court will divide the marital property while taking the following factors into consideration:

The extent to which each person provided monetary contributions to the purchase, preservation, and maintenance, or to the increase in value of marital property, including, but not limited to:
Salary or wages from employment and other earnings; and
Funds that are separate property.
The extent to which each person provided non-monetary contribution to the purchase, preservation, and maintenance, or increase in the value of marital property, including, but not limited to:
Services like housekeeping or child care;
Labor done in a family business or other business entity for which one or both parties are not compensated or for less than appropriate pay;
Labor conducted in maintaining or improving tangible marital property; and
Labor done in managing or investing assets that are marital property.
The extent that each person expended efforts during the marriage in a way that limits or diminishes the person’s income-earning ability or increases the income-earning ability of the other person, including, but not limited to:
Contributions by either person to the education or training of the other person which has boosted the latter’s income-earning ability; and
Employment or other income-earning activity forgone by either party as a result of an agreement between the parties or at the request of the other party.
The extent to which each party may have acted during the marriage in such a way as to dissipate or devalue the value of the couple’s marital property. Save for the assessment of the economic implications of the conduct, the court shall not consider fault or marital misconduct in deciding the proper distribution of marital property.

How Do You Get a Common-Law Marriage Affidavit in West Virginia?

Marriage affidavits are only granted in states that allow common-law marriages. West Virginia does not recognize common-law marriages, so they cannot be obtained from the state. Although common-law marriage laws differ by state, most states follow the same general guidelines for what information should be included in an affidavit:

The state where the partners have decided to marry must be included in the affidavit
According to the affidavit, both partners must be of legal marriageable age
The affidavit must include the decision date
Any other license or common-law marriage must be listed in the affidavit, along with the wedding and termination dates.

When Did Common-Law Marriage End in West Virginia?

West Virginia has never allowed common-law marriages to be formed within the state’s jurisdiction. It only recognizes common-law marriages that take place in states that allow them.

What is Considered Common-Law Marriage in West Virginia?

Common-law marriages are not permitted in West Virginia. Therefore, spouses who claim to be “married” but do not have a legal marriage are not legally married. Common-law marriages are recognized in West Virginia if they were formed in a state that allows them.

Does the Federal Government Recognize West Virginia Common-Law Marriages?

The recognition of marriages in the U.S. is dependent on the laws of the state where the marriage was contracted. There are only nine states that permit the creation of common-law marriages within their jurisdiction. They include: Colorado, Iowa, Kansas, Montana, New Hampshire, Rhode Island. South Carolina, Texas, and Utah. The District of Columbia also permits common-law marriages to be entered within its borders. Apart from these states, there are other states that have previously permitted the creation of common-law marriages during specific periods within their borders. These states include Alabama, Alaska, Georgia, Idaho, Michigan, Ohio, and South Carolina. For every state that permits common-law marriages, they provide specific rules on it. Some states enact particular laws that prescribe the grounds for their validity. Other states use case law, public policy, positive law, or natural law.

Only common-law marriages that take place in states where they are permitted or considered legal are recognized by the federal government. This includes common-law marriages formed in the states mentioned above. Within those states, common-law marriages may qualify for federal income tax benefits as well as immigration benefits such as permanent residency.