By: HUB’s EB Compliance Team
When can two people be considered married without formally getting married? When they’re common law spouses! Common law marriage, also known as informal marriage, is a marriage between two eligible individuals who generally hold themselves out as married to each other, without having participated in a formal marriage ceremony.
Background
Common law marriage is a creation of the states. Some states such as Colorado, Iowa, Kansas and Texas allow common law marriage, while many others do not. Others, such as Georgia, Idaho and Pennsylvania recognize them so long as the couple satisfied all requirements prior to a certain date. While exact requirements vary between the states, four common themes exist with these requirements:
- Capacity to Marry. The parties must have legal capacity to enter into a marriage, which may mean they have attained a specific age, or otherwise have the requisite mental capacity to enter into a marriage. It also usually means they aren’t married to someone else.
- Mutual Consent. Both parties to the marriage must mutually agree and consent to the marriage.
- Intent to Marry. The parties must intend to be married. Frequently this is referred to as holding one’s self out to be married. This could happen, for example, by wearing wedding rings, filing tax returns as married, registering at hotels or other places as a married couple, or otherwise telling people they are married
- Cohabitation. The parties must reside together, possibly for a minimum amount of time per the applicable statute.
Common Law Marriage and Employee Benefits
Common law spouses are lawful spouses. They must file tax returns as married (whether jointly or separately) and are afforded the same rights and responsibilities. For employer sponsored plans, this means if the plan allows spouses to be eligible under the plan terms, common law spouses would also eligible.
Common law marriages are recognized beyond the borders of the state in which the marriage occurs. For example, if a couple residing in Kansas are common law spouses, they remain common law spouses even if they move to another state that does not recognize common law marriage. This is required by the Full Faith and Credit Clause of the US Constitution. It means that even employers in states that do not recognize common law marriage may still have employees in common law marriages.
Common Law Marriage and Divorce
Once a couple is common law married, the marriage can only be dissolved via a divorce. In this sense, even though the marriage can be established without a formal ceremony, the dissolution must be formal.
Common Law Marriage and Qualifying Events
As we’ve discussed previously, there are good reasons to require evidence of qualifying events. However, producing documentation related to a common law marriage can be challenging, since by nature, common law marriage is less formal than a typical marriage. Some states, such as Texas allow for a formal declaration and registration of a common law marriage, but not all states do this. In states that do not do this, a tax return showing the spouses as married or an affidavit, like one used for domestic partners, could serve as documentation.
Documentation related to a divorce is no different when the marriage is common law than when the marriage is formal. A divorce decree or other court issued document could serve as documentation of the divorce.
Abuse of Common Law Marriage
Imagine a situation where an employee wishes to enroll their significant other with whom they are not married. If the plan does not extend eligibility to domestic partners, the employee may then declare the partner is their common law spouse. This is why documentation of eligibility is important. If the employee and their partner are truly common law spouses, there should be documentation of this, or at the very least the employee should be willing to sign an affidavit attesting to the fact.
Employers must however be careful not to request documentation from those claiming to be common law spouses if they don’t also request documentation for those claiming a more formal marriage. For example, if you require marriage certificates for employees who were married using a formal ceremony, it would be appropriate to ask for a tax return or affidavit from an employee claiming to be common law married.
Best Practices
Given the challenges associated with common law marriage, here are some best practices for employers to consider:
- Determine if you have employees in states that allow common law marriage. If you do, consider educating yourself on the requirements for common law marriage in those states.
- Consider whether qualifying events that result in a person adding or dropping a spouse should require evidence (and what evidence is required).
- Include the evidence requirement in the applicable plan language. This means your plan/wrap document, Summary Plan Description and Cafeteria Plan Document where applicable.
- This language should describe both what documentation serves as effective evidence, as well as the deadline for providing it.
- Apply the evidence requirement consistently with all impacted employees.
If you have any questions, please contact your HUB Advisor. View more compliance articles in our Compliance Directory.
NOTICE OF DISCLAIMER
The information herein is intended to be educational only and is based on information that is generally available. HUB International makes no representation or warranty as to its accuracy and is not obligated to update the information should it change in the future. The information is not intended to be legal or tax advice. Consult your attorney and/or professional advisor as to your organization’s specific circumstances and legal, tax or other requirements.