What Is Considered a Common Law Marriage In Kansas
While many people have heard of common law marriage, few know what it takes to be considered legally married under those circumstances. The confusion that comes with this type of union stems from the fact that each state has jurisdiction over these unions.
In Kansas, a couple must meet four requirements in order to be considered in a common law marriage: mutual consent, separation followed by cohabitation, reputation as being married and proper execution of a marriage license.
Consent
Unlike most formal marriage arrangements, consent is not the only requirement for a common law marriage. When two people agree to marry, they can do so without a wedding date, making their union legal in many states. However, that is not the case in Kansas.
Separation and Cohabitation
Kansas law is very specific about the separation and cohabitation aspect of common law marriage. First, the couple must separate . Then, after a period of at least 12 months, they must live together again.
Reputation as Being Married
In order to be considered a common law marriage in Kansas, the couple must have the reputation of being married. This can be done in a number of ways. For example, the couple does not have to say that they are married. They can simply have that reputation as a result of how they behave as a couple.
Proper Execution of a Marriage License
In Kansas, a common law marriage can take place when a couple properly executes a marriage license by a solemnized ceremony. However, the law in Kansas is very specific in this regard. In fact, the ordinance states, "An unmarried couple cannot create a common law marriage after July 1, 2013."
When property and finances become complicated, it’s important to seek an experienced family law attorney to help you navigate the complexities of Kansas law when it comes to common law marriage.
The History and Legal Aspects
The origins of common law marriage in North America can be traced back to English common law, where a marriage could be created by the couple’s mutual agreement and subsequent cohabitation. As the United States began its expansion westward to form new territories, this concept of common law marriage was included as part of the law. It wasn’t until 1958 that Kansas codified common law marriage, making it an official part of state law.
A common law marriage is created when two parties agree to be married and conduct themselves as though they are married, without a proper marriage ceremony or a marriage license. Kansas remains one of the few states that judges the legality of a marriage based solely on whether both parties intended to be married to one another.
From 1872 to 1957, Kansas law declared that in order for a marriage to be valid, it needed to have been contracted before a judge or minister, with a public record of the license having been made. However, in 1957, the passed Kansas Marriage Validation Act permitted common law marriages that had not been certified to be validated if both spouses met the requirements for both a legal marriage and proof of intent.
In 2000, the Kansas Legislature passed a bill that would remove the common law marriage exception from the Kansas Marriage Validation Act. A month later, the Governor struck down this bill and vetoed it into law. In June 2001, the Kansas Supreme Court issued a decision in State v. Miller, wherein it held that the common law marriage validation under the Kansas Marriage Validation Act was unconstitutional because the "Legislature cannot authoritatively pronounce who is and who is not married." Notably, the court said that the legislature does not have the power to "abrogate the common law" and that the Kansas Marriage Validation Act could only apply to couples who established a common law marriage before 1957, when the legislature first approved the Kansas Marriage Validation Act.
In 2012, the Kansas Legislature passed a bill that would abolish all common law marriages in the state, but it was vetoed by Governor Sam Brownback.
Kansas courts recognize that the state’s situation with common law marriage is unique. In 2009, the Kansas Supreme Court in Stubblefield v. Stubblefield, cited cases from other common law states and even from states that do not recognize common law marriages in finding that a kind of common law marriage existed prior to 1907. The Court also found that this kind of marriage amongst Native Americans remained valid since the law was "limited to the time when whites were crossing the plains."
A district court will consider whether to grant a divorce petition on the basis that a marriage is void, meaning that it should be annulled. Kansas law says a marriage is voidable by a divorce court if either party was incompetent at the time of marriage. The party seeking the annulment has the burden of proof in showing evidence of the parties’ intent to marry one another. A common law marriage is not voidable based solely on error and is presumed to be valid as long as there is evidence of intent.
By the clear declaration of the state legislature, Kansas now no longer recognizes common law marriages. Only those marriages performed before November 11, 1907 are valid.
Rights And Obligations
It may come to you as a surprise to learn that, like in many other states, common law marriages in Kansas carry with them the same rights and responsibilities as marriages that were conducted in a more traditional fashion. In this it is just like those contracts for service you may or may not read before clicking "I agree." Both types are legally binding agreements. When a couple chooses to enter into a common law marriage, they are agreeing to the same monetary and legal responsibilities that traditional marriages are based in.
Importantly, you and your partner are also waiving your rights to seek alimony or spousal support if the common law marriage ends in divorce like a traditional marriage would. If you can prove in court that your marriage was genuine and there’s no way you would have entered into it under false pretenses, generally you have the same rights as any other spouse in a divorce, i.e. alimony or spousal support during and after separation if need be.
Because there are so many factors to prove in court to secure yourself these same rights, the onus is ultimately on you to prove that what you had was an actual common law marriage when dividing your financial and legal assets.
The same is true for property that was acquired or owned during your marriage. The law considers property owned during the marriage to be joint assets, even in the case of a common law marriage. If you and your spouse acquired property before the marriage (such as debt, for example), that will also be yours individually, though you are free to come to an agreement regarding the division of these assets.
When it comes to custody issues, however, common law couples do not have many rights at all. Legally speaking you are not free to make health care or education decisions for your spouse’s children unless you’re married. You cannot make funeral or burial decisions either. In these cases, a court will likely grant full decision-making powers to the married parent.
Dissolution (Divorce) of A Common Law Marriage
Generally, the dissolution of a common law marriage in Kansas is processed within the district court just like a dissolution of a ceremonial marriage. The filing spouse will file a petition for divorce along with required filings. The parties may be able to agree to many aspects of the divorce, including, for example, property division or child custody.
Similar to other divorce cases, a common law divorce begins with one party filing a petition with the district court. Once service of the petition is accomplished, both parties must wait for at least 60 days before a hearing can be scheduled, although there are often exceptions to this requirement. For example, if both parties, including any minor children, live in the state together for at least six months and 60 days has elapsed since service on a responsive pleading has expired the parties can file an agreed divorce decree or file a notice that the case can be heard within the 60 days .
For those situations where the parties cannot agree on all aspects of the divorce, the action will proceed through the discovery process and all other aspects of a general divorce proceeding under the Kansas Statutes. An exception to this general rule is Child in Need of Care cases where the presiding judge follows the Uniform Child Custody Jurisdiction and Enforcement Act. In those cases the judge will conduct a timely hearing to determine the issues of custody and visitation.
The district court can end the common law marriage as easily as it began. The court will follow the standard divorce guidelines to issue a decree granting the parties a divorce. A common law spouse will be treated no differently than a traditional spouse when seeking a divorce in the state of Kansas.
Impact In Real Life Situations
Common law marriages can significantly impact a number of day-to-day situations in Kansas. Tax filings, for example, are one consideration. Couples commonly file jointly to avoid paying a higher tax rate. While married, common law spouses will continue to file jointly. However, a cheat may be found in doing so once separated because they may be forced to file as single persons once their common law union is severed. Another concern is the inheritance and property division considerations inherent to marital dissolution. Kansas distributes property in a divorce evenly, unless otherwise agreed to in a prenuptial agreement. Common law couples seeking property division often face obstacles because their marriages are not legally recognized. While property may be distributed at the dissolution of a traditional marriage, the fate of assets in a common law divorce is sometimes arduous and more costly. Joint custody and child support also represents potential obstacles for common law couples. Generally, parents have a right to seek and/or maintain custody of their children following divorce. However, practical considerations may intervene, and couples who have never legally married do not necessarily hold the same rights as traditional marriages.
Common Law Marriage Proof
Demonstrating the existence of a common law marriage in Kansas requires parties to present significant evidence to the relevant tribunal in order to prove its existence. Unlike a formal marriage certificate, parties claiming to have had a common law marriage do not have the benefit of an official record. While there is no definitive list of admissible items of evidence in order to support a claim of common law marriage, the following are considered appropriate items that can be presented in the court to determine if a common law marriage existed: (1) Witness Testimony; (2) Jointly-Titled Property; (3) Joint Lease; (4) Joint Tax Returns; (5) Joint Bank Accounts; (6) Joint Credit Accounts; (7) Change of Name Cards; (8) Memorabilia; and (9) Affidavits .
The Court will consider each bit of evidence individually and as a whole on whether it meets the burden of proof. In considering witness testimony, which is generally considered the most appropriate evidence outside of a marriage certificate, the Court may consider testimony from the parties involved, family members, co-workers, and friends. However, the testimony has to contain more than mere hearsay. The testimony should contain additional evidence as to the facts alleged of living as husband and wife. Finally, this evidence must be considered in the context of all pieces of evidence, and the Court must give weight based upon the circumstances, the relationship of the parties, the period of time the parties lived together, and other relevant information.