Common Law Marriage in Arizona 101
Arizona does not recognize common law marriage. Some background to draw on: at various times, from territorial days to the early 1960s, the state’s legislature considered but failed to enact statutes recognizing common law marriage. Our current statutory language in Arizona requires solemnization or a ceremonial marriage, with notarized evidence of the ceremony . The statute dealing with ceremonias marriages addresses the issue of common law marriage as follows: "Solemnization consists of a ceremonial marriage under the laws of this state, except for a common-law marriage which is related by Arizona law." Thus, if an Arizona court, and ultimately the Arizona Supreme Court, were to re-address this issue, it would likely conclude that common law marriage has been legislatively overruled.
Common Law Marriage Alternatives Already Recognized by Arizona Law
It is important to note that, despite the lack of common law marriage in Arizona, there are legal alternatives. These alternatives are available to couples who desire the legal recognition that comes with marriage without the formalities of a wedding ceremony or license.
Domestic Partnerships
In some ways, domestic partnerships provide the same general protections, benefits, and responsibilities that married couples have. Domestic Partnership Agreements address the legal rights, benefits, and obligations of each individual.
Cohabitation Agreements
Cohabitation agreements are premised on the idea that two individuals who wish to live together and share finances should contractually agree to do so, thereby eliminating the need for a common law marriage. Cohabitation agreements typically outline such things as:
Some of the benefits, rights, and protections of cohabitation are as follows:
For all of these agreements, it is important to have an experienced lawyer help you walk through the process. Having someone do the actual drafting of the agreement can be advantageous to making sure all of the legal nuances are covered.
Common Law Marriages from Another State: Do They Count?
Arizona does recognize the full faith and credit clause of the United States Constitution. This means that Arizona will recognize a common law marriage legally established in another state if that state requires statutory requirements such as filing a certificate or license. Arizona will not recognize a common law marriage formed in another state if the parties to that marriage did not meet the requirements of that other state. In other words, just because a couple was married in another state under the common law does not mean that Arizona will recognize that common law marriage when one of the parties moves to Arizona.
Your Rights if You Did Not Legally Get Married
The rights and responsibilities of Arizona couples in a long-term relationship who are not legally married have few rights and little protection over property, inheritance, and custody of children.
Property Rights
Arizona does not afford unmarried couples any rights into property inheritance upon the death of a domestic partner or when the domestic partnership ends. In Arizona, property acquired after the start of cohabitation is treated as tenant-in-common, meaning that each partner has a 50 percent claim to the property. However, if a title to an asset is placed in the name of one partner, it’s up to a judge to determine whether the intended recipient had a claim to the property . Should the intention to provide for the mate be in question, it is up to the judge to decide the validity of the will.
Inheritance
If you die without a will, Arizona intestate laws dictate the distribution of your estate. Unmarried couples with children may have a more difficult time claiming a share of their partner’s estate than those without children and by the individual assets that they have acquired during the course of their relationships. Child custody and child support will have to be decided in court should an unmarried couple separate.
Child Custody
Arizona does not treat same-sex couples like married couples as regards parenting and they are not afforded the same rights in matters of birth, adoption and custody. A third-party donor cannot be held responsible for child support.
Actions to Take So You Can Protect Your Relationship Legally
To protect yourself and your partner in the absence of legal recognition, there are several documents you can create which will help ensure that your wishes are honored if anything were to happen to you. For example, you may be able to use a will, power of attorney and a healthcare directive to provide for your partner in the event of your death, or if you were to become incapacitated. Your will is a legal document which lays out your wishes for what happens to your property and dependents upon your death. If you have children, you can appoint a guardian and even designate assets that will pass to your partner. While a will does not necessarily guarantee that these wishes will be fulfilled, it is a powerful tool in asserting your preferences. By designating your partner as your durable power of attorney, you can give them the authority to make decisions on your behalf if you are unable to do so yourself. This authority can be limited to certain circumstances, and includes both financial and medical powers of attorney. This helpfully allows you to side step any potential conflicts between family members and your partner during a time of crisis. Healthcare directives, also known as living wills or advance care directives are medical documents which detail the medical treatments you do or do not want to be performed in the case of medical emergency and incapacity. In nature, they may resemble a power of attorney in that they allow a partner to make decisions on your behalf. While these documents are not legally required in Arizona, they are valuable tools for anyone concerned about the legal recognition of their partner in the case of a medical emergency.
Consulting with Arizona Family Lawyers
Many couples, in the midst of deciding whether to consider their options outside of traditional marriage, often wonder about their various legal choices. This is where the value of consulting with an Arizona attorney can be invaluable. A qualified legal professional can provide insight on current laws and how they may apply to your unique circumstances.
Consulting legal experts in Arizona before making your final decision can also help you determine whether non-marital contracts, also known as ‘cohabitation agreements’, or domestic partnerships are legal options worthy of consideration. While not legally binding in many states, a cohabitation agreement often reflects the basic tenets of both marriage and cohabitation. Cohabitation agreements are often tailored around specific issues; from property division to dispute resolution to the division of debts and assets. While not as comprehensive as a marriage contract , it provides a solid reference point in the event of the couple’s separation.
Domestic partnerships are essentially recognized marriages between two people who do not adhere to the traditional model. Many states are now offering domestic partnership licenses, which allow same-sex couples to become joint legal partners. Arizona does not currently recognize domestic partnerships as a legal option.
The bottom line? While it is true that Arizona does not recognize common law marriages, it is important to consider all options, including domestic partnerships and cohabitation agreements. Consulting qualified attorneys on these issues is a valuable first step in the decision-making process.