Common Law Marriage in Michigan

Take-Away: Michigan does not legally recognize common law marriage under Michigan law, but it will respect a common law marriage that occurred in another jurisdiction.

Background: Common law marriage is the term for a marriage that exists by agreement, by cohabitation, and by behaving and speaking as though the couple was married. Simply living together is insufficient to establish a common law marriage. Under the common law, a common law marriage was considered to be one of the fundamental rights since the United States was formed.

Income Taxes: A common law marriage is considered to be a legal marriage for federal income tax purposes if the common law marriage is recognized by the state where the couple resides. Even if the common law marriage couple later move to Michigan, which does not recognize common law marriages, the couple is still legally married for federal tax filing purposes.

Family Medical Leave Act: In 2015, the U.S. Department of Labor extended leave rights under the 1993 Family Medical Leave Act to eligible employees in common law marriages in those states that recognize common law marriages without regard to where the employee currently lives or works.

Michigan: For an extended period of time, Michigan recognized common law marriages. But common law marriage was abolished in Michigan in by statute in 1957. Since then, a couple must obtain a license to marry in Michigan and also possess a wedding certificate to be considered officially wed.

Michigan Courts: The invalidity of a common law marriage was considered by the Michigan Supreme Court in 1999 in Van v. Zahorik, 460 Mich. 320 (1999.). In that case Scott Van and Mary Zahorik lived together from 1986 until 1991 but they were never married. Mary had two children while living with Scott. Scott claimed that Mary had informed him that he was the father of the two children. Mary denied Scott access to the children. Scott filed a petition for legal custody and parenting time  with the children. Mary later filed a paternity complaint against Scott. Mary then, shifted her legal position and she filed a motion for summary disposition claiming that Scott was not the biological father of the two children and had not right to see the children. A blood test later showed that Scott was not the father, but he nonetheless claimed that he was an equitable parent. The lawsuit was filed after Scott had a relationship with another woman. Mary contested Scott’s equitable parent claims pointing out that he had no parental rights since he and Mary were never married.  The Michigan Supreme Court concluded that a Michigan ‘common law’ marriage/relationship is not entitled to legal recognition, and since Scott and Mary were not married, there was no legal basis to apply the doctrine of equitable parenthood as Scott claimed:

“Further, taking a doctrine rooted in marriage and extending it to persons who were never married would have repercussions on the institution of marriage… Here, the Court of Appeals correctly observed that a relationship that does not constitute a legal marriage does not give rise to property rights between the parties, and similarly, that a court should not be unmindful of the role of our Legislature concerning access to children on the periphery of such relationships.”

Other States: Michigan will, however,  continue to recognize common law marriages that are valid in other states which still recognize common law marriages due to the ‘full, faith, and credit’ clause of the United States Constitution. States which continue to legally recognize and allow common law marriages are: Utah, Colorado, Texas, New Hampshire, Kansas, Iowa, South Carolina and Montana. There is some belief (confusion?) that Rhode Island also recognizes a common law marriage, although that seems to be debated in legal circles. Common law marriages are also allowed in Washington, D.C.

Michigan Recognition of Common Law Marriages: A Michigan court may consider the validity of the common law marriage originating in another state, and if so apply Michigan’s divorce laws, by considering several factors, including: (i) the two individuals actually cohabited in an out-of-state jurisdiction that recognizes common law marriages; (ii) that other state has established clear common law marriage requirements; and (iii) the date of actually declaring the specific type of common law marriage can be determined by the Michigan court. Additional assistance to the Michigan court in this last factor would be if the couple also signed  durable power of attorneys (financial and medical) prior to their cohabitation, naming each other as their agent and patient advocate.

Common Law Marriage in Estate Planning: The concept of common law marriage can also creep into estate planning documents and their interpretation. Some trusts provide that if a continuing trust is created for a child or grandchild, if that family-member beneficiary dies, his or her spouse steps-in a contingent income beneficiary of that continuing trust so long as that surviving widow or widower remains unmarried. The family-member  beneficiary might reside and cohabit in one of the states that still recognize common law marriage, which means that his/her cohabitant might become a successor beneficiary, contrary to the settlor’s intent. Perhaps a trust instrument’s ‘boilerplate’ provisions might define a marriage relationship as ‘legally married, but not a common law marriage’ to clarify the settlor’s intent on who qualifies as a ‘spouse.’

Conclusion: It seems that more and more couples have decided to live together without the benefit of being married. Couples that live together and do not want to marry should consider entering into a contract that expressly describes what will happen if they later break up, e.g. a cohabitation agreement. Living together provides no special rights regardless of the length of that relationship because Michigan does not respect common law marriages. Consequently, for those individuals who live together and combine their resources, they need to understand that they cannot access Michigan divorce laws to divide property, debts, seek financial support or obtain any other benefits of a ’marriage.’