Common Law Marriage in WA: Legal Effects of Living Together

Ten years ago my good friend started dating a coworker with a dachshund. He liked the dog and loved the girl, so a couple years later the three of them moved in together. They’ve lived in the same house for several years now.

Nowadays, it’s common for people to live together before marriage, but few know their legal rights versus those of married couples. Washington courts do award ex-partners certain interests at the end of a relationship. Although the rights of non-married couples are limited, an ex-partner will be entitled to a fair division of community property acquired during the relationship. However, a court must first rule that there was a committed intimate relationship (CIR).

If you’d like to know more about committed intimate relationships in Washington this article will discuss topics like the court’s criteria to establish a CIR, what rights you have in a CIR, and steps to take at the end of a CIR.

Topics

• What is a common law marriage?
• How do you establish a Committed Intimate Relationship?
• Rights in a Committed Intimate Relationship vs. Marriage
• Smart ways to plan ahead
• Legal steps to take if your Committed Intimate Relationship ends
• What happens if a court rules there is no Committed Intimate Relationship?

What is a Common Law Marriage?

A common law marriage occurs when a couple lives together for a considerable amount of time and act as a married couple without officially going through the formal steps to marry. The couple must be capable of marrying, meaning they are both 18, of sound mind and not married to someone else. In addition, affirmative steps to establish the common law marriage like taking the same last name or sharing a joint bank account are required.

While common law marriage is a well-known concept, most states, including Washington, will not establish a common law marriage. However, Washington will accept a common law marriage that was established in another state. State’s that currently recognize common law marriage are Utah, Texas, South Carolina, Rhode Island, Montana, Kansas, Iowa, and Colorado.

In Washington the closest equivalent to common law marriage is known as a committed intimate relationship.

How do you Establish a Committed Intimate Relationship?

There is no checklist to establish a committed intimate relationship, but the court does have certain things it looks for. Here are the top four criteria to determine whether a committed intimate relationship existed.

First, a court will look at the duration of the relationship. The longer a couple has been together the more likely a court will decide a committed intimate relationship existed. While each scenario is fact specific, a good rule of thumb is that the couple needs to have lived together for at least three years.

Second, a court will look at whether the relationship was continuous. The court will look not only if you lived together for the entire time, but also whether both individuals were committed to the relationship throughout. An on again off again couple is less likely to prove a committed intimate relationship, especially if either of them moved out at any time during the relationship.

Third, the court will review the intent of the couple to establish a marriage like relationship. Intent can be shown in many ways. Examples include, having children together or naming each other in their wills.

Fourth, a court will want to know if a couple opened a joint bank account, shared credit cards, or bought property together. Sharing finances is a big indicator of a committed intimate relationship.

While these four items are important a court will consider any other relevant information. For example, a court would want to know if one of you sacrificed career opportunities for the relationship. If you’re in a situation where you want to prove a committed intimate relationship make a list of all the items you think show intent to act like a married couple and bring it to your attorney.

Rights in a Committed Intimate Relationship vs. Marriage

People in a committed intimate relationship do have more rights than not, but still less than a married couple.

Property Division

First, people in a committed intimate relationship have rights to any community property acquired during the relationship. This does not necessarily mean a 50/50 split, which is the case with community property in a marriage. Keep in mind most property will be classified as community, common exceptions are inheritances, government benefits, and gifts.

In a committed intimate relationship the division is up to the court and based on whatever the court believes is fair. Similar to the criteria for establishing the relationship, there is no set list of factors. Some things a court will take into account are the nature of the property, the amount of property, and each person’s financial situation at the end of the relationship.

Debt Division

Second, you may responsible for debts incurred by your partner during the committed intimate relationship, but again debt may not be divided 50/50. The court will look at the expectations of the parties and determine a fair division. For example, debt incurred on a joint credit is likely to be divided, where student loans incurred by one partner during the relationship may be the responsibility of only the student.

Keep in mind, if a court orders a partner to pay a debt, but they refuse, a creditor may still contact you for payment. Creditor’s will ignore the court’s debt division, so if you’re forced to pay off the debt you can later return to court to get a judgment against your ex, who will then be forced to pay you in place of the creditor. This can get messy, so it’s often best to pay down as much debt at the time of separation as possible.

Support Payments: Child & Spousal

Third, people in a committed intimate relationship are still eligible for child support when a relationship ends, but may not ask for spousal maintenance. Child support is awarded independent of marriage status and often is awarded in situations where the parties never lived together. Unfortunately for long-term partners, maintenance can only be awarded at the end of a marriage and may not be awarded by the court no matter the circumstances.

Attorney Fees

At the end of a marriage, a spouse can request the other to pay for their attorney fees. The situation has to warrant this payment, but it’s a common occurrence to allow both spouses equal access to the legal system.

At the end of a committed intimate relationship there is no opportunity to request attorney fees. Exceptions do exist though. For example, if there are children involved, attorney fees may be awarded to cover legal costs related to the child support issue.

Death or Incapacity

Last, if your partner passes away without a will, you will not inherit. In a marriage the surviving spouse is entitled to inherit from the other, but in a committed intimate relationship no such right exists. Similarly, if you’re incapacitated your partner will not be able to make major decisions for you and the choice may default to your family.

If you’re in a long-term relationship you can protect you and your partners interests with a handful of legal tools. Consider drafting wills, durable power of attorneys, health care directives or cohabitation agreements.

Smart Ways to Plan Ahead

Drafting a will can be an easy way to protect your partner. In the event of your death you’ll know your partner will still be able to inherit from you. Plus, if you both own any property together you can decide ahead of time how it will be distributed.

If you pass away without a will, it can leave your partner in a tough spot. I’ve seen partners who owned a vacation property together, which they agreed would pass to the other in the event of death. Unfortunately, one of the owners died without a will. His interests passed to his brother and sister, leaving his partner in an awkward position.

A durable power of attorney is a legal document, which can give another person the authority to makes financial or legal decisions for you if you’re unable to do so. Executing a durable power of attorney can give you peace of mind that in the event you are incapacitated, your partner is able to make important financial decisions for you. Similarly a healthcare directive allows your partner to make medical decisions for you.

In long-term relationships with significant assets and debts couples may want to create a cohabitation agreement. A cohabitation agreement is a contract between you and your partner that outlines what will be done with property, money and debt in the event the relationship ends. This can be an awkward document to draft, since it is similar to a prenuptial agreement in that it plans for the end of a relationship and a will is often a better tool if a partner passes away.

Legal Steps to Take if Your Committed Intimate Relationship Ends

A committed intimate relationship is not assumed. If your relationship ends, speak with your ex-partner and communicate your concerns. Hopefully they agree that a CIR existed and you can divide property and assets in the way you both agree is fair.

If your ex is unwilling to work with you, you’ll need to file a case. You have three years from the end of a relationship to bring a case to show a committed intimate relationship existed. If you can establish the relationship, the court will then divide the assets and debt as discussed above.

Unfortunately, it can take a long time to get a trial date. Sometimes up to 18 months, but this will vary on where you file the case.

On occasion there is also need to go to court over parenting rights and responsibilities. If you and your spouse have children together you’ll need to create a parenting plan and get a child support order in place.

Similarly, if your partner has children from a previous relationship you may have de facto parenting rights. If you are unable to agree to a parenting arrangement you will need to show the court that you meet certain criteria, which would award you parenting rights. The court timeline for these items is shorter, since it’s independent of the committed intimate relationship.

What Happens if a Court Rules There is No Committed Intimate Relationship?

If the court rules that there was no committed intimate relationship, typically only property with both individuals on the title can be divided. In these situations the court will treat the partners as tenants in common.

This means that the court will presume that any property with both your names on the title is owned 50/50. For example, if you both have your name on the title to a new Toyota 4Runner, each of you would be entitled to 50% of the cars worth.

However, the court will deviate from the 50/50 division if you show that you contributed to more than half the purchase price of the asset. For example, if you paid for 100% of the 4Runner and just added your partner to the title, you will be awarded the car.

Keep in mind, there is an exception for gifts. If you bought an asset as a gift for your partner, you can’t later claim the entire property for yourself.

Conclusion

If you’re unmarried and living with your partner I hope you now have a better understanding of your legal rights and what you can do to protect them. Please call me at 206.409.4086 or email if you have any further questions or need help with issues related to your committed intimate relationship.

Cheers,
Justin