What I learned about common law marriage from Bob McDonnell

I thought that I had a fairly good grasp of the implications of the Marshall-Newman amendment (at least for a layperson who reads law journals for fun), but hearing Attorney General Bob McDonnell explain why he thinks I shouldn’t be overly concerned about it has only raised more reasons to be concerned.

I knew that Virginia law has no provision for recognizing common law marriage – but Virginia does currently recognize, because of the full faith and credit clause, marriages entered into at common law in other states.

Now we know that would change if Marshall-Newman passes.

In response to a question at Tuesday night’s Town Hall meeting, McDonnell clearly stated that the Marshall-Newman amendment would prohibit the recognition of a common law marriage entered into in another state.

It is widely assumed, although only true in some states, that when a couple presents themselves to the community as if they are married, after a certain period of time (criteria vary by state), they are legally considered to be married, with all the rights and obligations of marriage.

Common law marriage makes you a legally married couple in every way, even though you never obtained a marriage license. If you choose to end your relationship, you must get a divorce, even though you never had a wedding. Legally, common law married couples must play by all the same rules as “regular” married couples. If you live in one of the common law states and don’t want your relationship to become a common law marriage, you must be clear that it is your intention not to marry.
Common law marriage fact sheet, Alternatives to Marriage Project

States that recognize common law marriage:

  • Alabama
  • Colorado
  • Georgia (if created before 1/1/97)
  • Idaho (if created before 1/1/96)
  • Iowa
  • Kansas
  • Montana
  • New Hampshire (for inheritance purposes only)
  • Ohio (if created before 10/10/91)
  • Oklahoma
  • Pennsylvania (if created before 9/03)
  • Rhode Island
  • South Carolina
  • Texas
  • Utah
  • Washington, D.C.

Therefore, unsuspecting straight couples who are legally married in one of these states, upon moving to Virginia, will find that they are no longer married. Since there will be no formal notification of this fact, they will in many cases find this out in the midst of some horrible crisis, when having the validity of their familial relationships challenged is the last thing they need.

Even better: Crafty people who find themselves in common law marriages that they want out of without the pesky legal responsibility of a divorce settlement can flee to Virginia. Yay! We can become a haven not only for parental kidnappers seeking to avoid the federal no-custody-judge-shopping law, but irresponsible deadbeats and jerks who want an easy way to dissolve their marriages.

Marshall-Newman proponents will retort that there is no record of this having happened as the result of another state constitutional amendment. This is true, for the simple reason that no previous state amendment’s language has gone as far as Marshall-Newman.

Vote “NO”, Virginia.

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5 Responses to What I learned about common law marriage from Bob McDonnell

  1. Ray Warren says:

    Interestingly, I disagree with the Attorney General. So it possible the things David describes would not happen.

    If a state recognizes common law marriage that marriage is not a “another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage”. It is a marriage. I don’t see how Newman/Marshall will change that except to limit the application to cases involving one man and one woman if any state decides to expand its definition of common law marriage to embrace same sex couples (highly unlikely).

    But, my view, even if correct, does not make the Amendment any more acceptable. The fact that two honest lawyers can easily disagree on the point (and I am a former circuit court judge with over twenty years of legal experience) points to the fact that NOBODY knows what the second two sentences of the proposed amendment will mean. The Attorney General is not the state Supreme Court and he will not have the ultimate say on anything, including his assurances that the amendment will not affect powers of attorney or medical directives.

    It is amazing that the conservative element, so often critical of the judiciary, basically wish to strip the people’s representatives of the power to decide crucial issues and vest it in the hands of seven appointed Supreme Court justices.

  2. David says:

    Thanks, Ray. He’s just one lawyer, as we keep pointing out, with no particular insight into how judges would rule on any of this.

    The fact that he answered that question the way he did is pretty interesting, though. Why would he do that, when it would seem to serve the amendment-pushers better politically to say what you do, above?

  3. Ray Warren says:

    Strange things happen when political animals try to think without consulting their handlers. It is a debatable question and his legal view is not ridiculous. He may really believe it.

    Or, perhaps he simply gave an off the cuff answer. Or, perhaps he saw the political context differently. His holier than thou backers probably would not mind tightening the recognition of common law marriages, so he was in a difficult position.

    Regardless, the point that nobody really knows what the second part of the amendment proposal will do is very valid and his answer illustrates that point.

  4. Nicky Grist says:

    At the Alternatives to Marriage Project we are extremely concerned that the amendment will be used against any and all unmarried people, including people with common law marriages. It’s great that our common law fact sheet was helpful to you. We get daily emails and calls from people in states that do and don’t recognize common law marriage – they are unsure about their rights and are often at risk of losing homes, children, relationships, health insurance and other things they thought they had because common law marriage is so mis-understood.
    AtMP is mobilizing our subscribers in VA (and AZ, WI, and other states facing similar 2006 ballots) to fight the amendment. If you aren’t already involved, please join us. See http://www.unmarried.org/stop_06_amendments/index.php

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