Common Law Marriage in Massachusetts: Myths and Facts
Common law marriage is a topic that is surrounded by misconceptions. Generally, common law marriage refers to a relationship where a couple lives together and presents themselves as married without formalizing their union through a marriage license or ceremony. Unlike other states, Massachusetts does not recognize common law marriages. Simply living with a partner for a certain period of time in Massachusetts does not create a legal marriage nor does it entitle the parties to the same legal rights as married couples.
A common myth often associated with common law marriage is that if a couple is residing together for seven years, they are now common law married and are common law spouses. This is not true for Massachusetts, the state requires a formal marriage process, including a marriage license and ceremony.
Another common myth often associated with common law marriage is that of the “married on vacation.” Couples on vacation in a state that recognizes common law marriage will not meet the legal standing for a common law marriage. States that recognize common law marriage have their own specific requirements to establish a common law marriage.
Although common law marriage is not available in Massachusetts, under the full faith and credit clause of the United States Constitution, Massachusetts must treat couples who meet the specific requirements for common law marriage in another state as if they are married.
How Common Law Influences Property and Inheritance Rights
When an unmarried couple separates, dividing the property they have acquired will depend on ownership and any agreements made between the couple. When a couple is unmarried, the property rights primarily rely on whose name is on the title or deed. The probate and family court will not divide the assets of the couple. Family law attorneys therefore cannot help with division of personal property or real estate.
For inheritance, Massachusetts statutes dictate what happens in the absence of a will. Unmarried couples do not automatically inherit from each other under the state law. If you choose to remain unmarried, a well crafted will is crucial to ensure your intentions in regards your possessions and whether any or all of those are given to your partner.
Marriages outside of Massachusetts
Massachusetts will recognize legal marriages conducted in other states as valid in Massachusetts.
Massachusetts will recognize marriages conducted in foreign countries if the marriage was legally performed in that country and the marriage itself does not violate Massachusetts state law. Examples of marriage that Massachusetts will not recognize are, bigamy, certain incestuous relationships, minors, and polygamy. You can see a more complete list of marriages Massachusetts will not recognize here. If you are getting married in a foreign country, you will need to report your marriage to the U.S. Embassy or Consulate.
Legal Requirements for Marriage in Massachusetts
To get married in Massachusetts, you do not need to be a state resident, but you must be eighteen years or older.
There are four primary groups of people who can officiate at weddings in Massachusetts.
In-state Clergy Member
In-state Clergy Member – If you want to be married by a member of the clergy who lives in Massachusetts, they are most likely already authorized to perform the ceremony. However, if they have not performed a marriage in Massachusetts before, they will need to file three forms with the Commissions Section of the Public Records Division.
In-state Justice of the Peace
In-state Justice of the Peace – Justices of the Peace are appointed by the Governor with the advice and consent of the Executive Council, and some are authorized to perform marriages. You will need to contact your city or town clerk for more information if you want to be married by a Justice of the Peace.
Out-of-state Clergy Member or Justice of the Peace
Out-of-state Clergy Member or Justice of the Peace – Clergy members or justices of the peace who are authorized in other states to perform marriages have to file the non-resident, out-of-state clergy petition to get a certification to officiate your ceremony. They should not file the application more than six weeks before your wedding day. Once your officiant-to-be gets the certificate (usually two-four weeks after applying) they have to file it with the city or town clerk that will issue your marriage license within ten days of the ceremony.
Anyone with a one-day Designation
Anyone with a one-day Designation – if you want a friend or family member to officiate your wedding, they can apply for a one-day designation. They must fill out an application online or by mail from six months to one week before your wedding date. There is no residency requirement for one-day designations.
You need to have a marriage license to get married in Massachusetts. You can apply for a marriage license from any city or town in the state of Massachusetts, it does not have to be from the town/city where you live or from the town/city where your ceremony will take place. There is a three-day waiting period for marriage license applications. The marriage license is valid for sixty days once you have received it. You should contact your city or town clerk to find out exactly what you and your future spouse need to do to get a marriage license, but in general, before the wedding you will need to:
Fill out a Notice of Intention of Marriage Form – you and your future spouse will need to go in person to your city or town clerk to fill out this form. You generally need to provide:
- Proof of your age, such as a birth certificate or a passport;
- Your social security number or green card number;
- Payment for fees (which vary by location); and
- The name you will use after the wedding, if you have decided to change your name.
Pick up your marriage license – there is a required three-day waiting period before you are able to pick up your marriage license. In certain cases, you can apply for a marriage without delay at the probate or district court in the town/city where you submitted your notice to waive this period. The marriage license is valid for sixty days. If you are not married within the sixty days of the date the marriage license was granted, you will need to apply for it again.
Give your license to the person conducting the ceremony – After you are married, your officiant must sign and return the license to the city or town clerk who issued it before the sixty-day time period is up. You can then go to the city or town where the license was returned and obtain a marriage certificate.
Understanding the Legal Status of Engagement Rings
Engagement rings in Massachusetts are a conditional gift that must be returned to the donor if the wedding is called off, regardless of the circumstances leading to the breakup. DeCicco v. Barker, 339 Mass. 457. A conditional gift is a gift given with the understanding that it must be returned if a certain condition is not met. The condition implied with engagement rings is that the marriage will take place. Although there is no legal timeline of when the engagement ring should be returned, the party in possession of the engagement ring should return it as soon as possible.
Once you have fulfilled the condition, meaning the marriage ceremony took place and you are now married, generally the engagement ring belongs to that spouse, and you do not have to return the engagement ring after a divorce. There are times when the court will rule the engagement ring must be returned, even after the marriage has taken place, such as, rings that are family heirloom or language pertaining to the engagement ring in a prenuptial or postnuptial agreement.
Domestic Partnerships and Cohabitation in Massachusetts
Massachusetts recognizes domestic partnerships and allows any couple to register for a domestic partnership if they are able to meet certain requirements. A domestic partnership offers some legal recognition for unmarried couples. A domestic partnership does not give couples all of the rights that a married couple is entitled to. A domestic partnership can apply to couples who are not married but live together and it can provide some of the legal benefits that married couples enjoy.
Some of the benefits a domestic partnership in Massachusetts offers are:
- Hospital visitation rights;
- Family healthcare coverage;
- Correctional facility visitation rights;
- Access to a dependent child’s school records;
- The right to remove a child from school for emergencies;
- Bereavement leave;
- Sick leave to care for a partner; and
- Shared employment benefits from a partner.
To make a domestic partnership official in Massachusetts, you can register with your city or town clerk’s office. You and your partner must both be at least eighteen years old, you are not related by blood, unmarried and mentally capable of entering into a contract. You will be required to declare that you are each other’s only domestic partner and that you share living expenses and are responsible for each other’s wellbeing.
Some domestic partners may have access to certain health insurance benefits, although the availability of these benefits widely vary depending on the employer’s policies. As a result of not being married, domestic partners may face tax implications related to health insurance benefits that married couples are exempt from. An example of this is, if one partner is enrolled in the other’s health plan, the non-employee partner may be liable for taxes on the value of that coverage.
To complete this process, you and your partner will need to complete a domestic partnership form, you will need to check with your city or towns clerk’s office, as the forms vary by location, and you will both need to appear in person at the city or town’s clerk’s office with a valid government-issued photo ID. The domestic partnership process includes a fee, which varies by location. After registering, if you are approved, you will receive a copy of your partnership.
In Massachusetts, a domestic partnership can be terminated in two ways:
- Death of a domestic partner – A domestic partnership is immediately terminated when one of the domestic partners die. The surviving domestic partner must notify the town or city clerk of the death. The partnership will be considered legally ended on the date of the death.
- Termination statement – A domestic partner can file a termination statement with the town or city clerk to voluntarily terminate the domestic partnership. The termination statement must be signed by the domestic partner in front of a notary public. The domestic partner must also mail a copy of the termination statement to the other domestic partner at their last known address. The termination is effective seven days after the town or city clerk receives the termination statement. Some cities and towns in Massachusetts have ordinances about domestic partnership and termination, you will need to check with your local city or town clerk to see if your municipality has such an ordinance. If you wish to enter into a different domestic partnership, there is generally a waiting period of ninety days.
Ending a domestic partnership is different from a divorce because they can be more straightforward. In some instances, it can be as simple as filing the termination paperwork. The process becomes more complicated when there are joint assets or children involved. The probate and family court will handle issues of child custody and child support. The probate and family court will not handle issues relating to assets or debts of the couple because they were not legally married.
Cohabitation agreements are enforceable in Massachusetts, they are contracts that define and protect the financial interests and rights of unmarried partners who live together or plan to live together. They generally outline how assets, property and debts will be divided if the couple separates or in the event of death. Cohabitation agreements can also discuss child custody, child support and visitation rights but the court will be able to modify or reject what is included in the cohabitation agreement in order to act in the child’s best interests.
The cohabitation agreement can also provide inheritance rights. Cohabitation agreements should be drafted in conjunction with a will, a health care proxy and a power of attorney. Even with a well-drafted agreement and estate plan, there are legal differences between marriage and cohabitation and the rights that come with each.