Family Lawyer in Delaware Explains Common-Law Marriage: Rights, Claims, and Practical Advice

Understanding Common-Law Marriage in Delaware: A Comprehensive Guide

Delaware does not recognize common-law marriage. This is a crucial distinction for individuals living in or moving to Delaware, especially if they have previously resided in a state that does recognize this type of marital union.

What is Common-Law Marriage? (And Why Doesn't Delaware Recognize It?)

⚖️ Common-law marriage, also known as informal marriage, is a type of marital union that exists when a couple presents themselves to the public as married, intends to be married, and cohabitates as husband and wife, without obtaining a marriage license or undergoing a formal ceremony.

While a number of states in the United States recognize common-law marriage, Delaware is not one of them. The absence of legal recognition in Delaware has significant ramifications for couples who believe they might qualify as common-law spouses.

The Impact of Delaware's Stance on Common-Law Marriage

💔 Because Delaware does not recognize common-law marriage, couples who live together for extended periods, even decades, do not automatically acquire the same rights and responsibilities as legally married couples. This lack of recognition affects numerous areas, including:

• Property Rights: Unmarried couples do not have the same automatic rights to property acquired during their relationship as married couples do upon divorce or death.
• Inheritance: Without a valid will, a surviving unmarried partner has no automatic right to inherit from their deceased partner.
• Healthcare Decisions: Unless specific legal documents are in place, such as healthcare proxies or powers of attorney, an unmarried partner may not have the right to make medical decisions for their incapacitated partner.
• Tax Benefits: Unmarried couples are not eligible for the same tax benefits as married couples.
• Government Benefits: Certain government benefits, like Social Security spousal benefits, are not available to unmarried partners.

What Happens if You Move to Delaware from a Common-Law Marriage State?

🚚 This is where things can get complicated. Delaware adheres to the principle of "full faith and credit," which requires Delaware courts to recognize valid marriages entered into in other states, even if those marriages would not be valid in Delaware. Therefore:

• Valid Common-Law Marriage Recognized: If you legally established a common-law marriage in a state that recognizes it (e.g., Colorado, Iowa, Kansas, Montana, New Hampshire (limited to inheritance purposes), Oklahoma, Rhode Island, South Carolina, Texas, and the District of Columbia) and then move to Delaware, Delaware will generally recognize your marriage.
• Proof is Key: You will need to provide sufficient evidence to demonstrate that your relationship met the requirements for a valid common-law marriage in the state where it was established. This evidence may include affidavits, joint bank statements, property deeds, and testimony from friends and family.
• Dissolving the Marriage: If you subsequently decide to separate, you will need to formally dissolve the marriage through a divorce proceeding in Delaware.

Protecting Your Rights as an Unmarried Couple in Delaware

🔐 Even though Delaware doesn't recognize common-law marriage, there are legal tools available to protect your rights and interests as an unmarried couple. These include:

• Cohabitation Agreements: These legally binding contracts outline each partner's rights and responsibilities during the relationship and what happens if the relationship ends. They can address issues such as property division, financial support, and debt allocation.
• Wills and Trusts: These legal documents allow you to specify how your assets will be distributed upon your death. Without a will, your assets will be distributed according to Delaware's intestacy laws, which may not reflect your wishes.
• Powers of Attorney: A power of attorney allows you to designate someone to make financial decisions on your behalf if you become incapacitated.
• Healthcare Proxies: A healthcare proxy allows you to appoint someone to make medical decisions for you if you are unable to do so yourself.
• Joint Ownership of Property: While not creating a marital union, jointly owning property with "rights of survivorship" ensures that if one partner passes away, the other partner automatically inherits the property. Consult an attorney to determine the best form of joint ownership for your situation.
• Beneficiary Designations: Ensure your partner is named as the beneficiary on life insurance policies, retirement accounts, and other financial assets.

Cohabitation Agreements: A Deeper Dive

A well-drafted cohabitation agreement is the most important tool for unmarried couples in Delaware to protect their interests. These agreements can address a wide range of issues, including:

• Property Ownership: Clearly define who owns what property, both individually and jointly, and how it will be divided if the relationship ends.
• Financial Support: Outline whether one partner will provide financial support to the other, either during the relationship or after it ends. Delaware courts are increasingly willing to enforce provisions resembling alimony or spousal support in cohabitation agreements, although it is not referred to as such.
• Debt Allocation: Specify who is responsible for which debts incurred during the relationship.
• Household Expenses: Detail how household expenses will be shared.
• Dispute Resolution: Include a clause outlining how disputes will be resolved, such as through mediation or arbitration.

⚠️ It is essential to have a cohabitation agreement drafted by an experienced family law attorney in Delaware to ensure it is legally sound and enforceable.

Navigating Property Division Without Common-Law Marriage in Delaware

Without the protection of common-law marriage, property division upon separation in Delaware can be complex. Here's a breakdown:

• Individual Property: Property owned by each partner before the relationship remains their separate property.
• Jointly Owned Property: Property jointly owned is typically divided according to the terms of the ownership agreement or in proportion to each partner's contribution.
• "Palimony" Claims: Delaware courts generally do not recognize "palimony" claims, which are claims for financial support based solely on the existence of a long-term, unmarried relationship. However, a court *may* consider a claim based on theories of unjust enrichment or breach of contract if one partner provided services or contributions to the other with a reasonable expectation of compensation, even without a written agreement. This is a difficult legal hurdle.
• Constructive Trust: In limited circumstances, a court may impose a constructive trust on property if one partner unfairly benefited at the expense of the other. This typically requires proof of fraud, undue influence, or a breach of fiduciary duty.

Strategies for Protecting Yourself During a Relationship

💪 Even with legal agreements in place, proactive measures can further protect your interests:

• Maintain Separate Finances: Keep separate bank accounts and credit cards to avoid commingling funds.
• Document Contributions: Keep detailed records of any financial contributions you make towards joint property or expenses.
• Seek Independent Legal Advice: Consult with an attorney to understand your rights and obligations before entering into any financial agreements or making significant investments.
• Review Agreements Regularly: Cohabitation agreements should be reviewed and updated periodically to reflect changes in your circumstances.

Addressing Children's Issues in Unmarried Relationships

👨‍👩‍👧‍👦 Children born to unmarried parents in Delaware have the same legal rights as children born to married parents. However, establishing paternity is crucial for ensuring the child's rights to financial support, inheritance, and healthcare benefits.

• Paternity Establishment: Paternity can be established through a voluntary acknowledgement of paternity or through a court order.
• Custody and Visitation: Both parents have the right to seek custody and visitation of their child. Delaware courts determine custody and visitation arrangements based on the best interests of the child.
• Child Support: Both parents have a legal obligation to support their child financially. Child support is calculated based on the Delaware Child Support Formula, which takes into account each parent's income and expenses.

Potential Legal Claims Available Upon Separation

While common-law marriage doesn't exist, depending on the specific circumstances, a separating unmarried partner *might* have grounds for certain legal claims. These are complex and require expert legal evaluation:

• Unjust Enrichment: If one partner benefited unfairly at the expense of the other, a claim for unjust enrichment may be possible. This requires proving that the other partner received a benefit, that the benefit was conferred at your expense, and that it would be unjust for the other partner to retain the benefit without compensation.
• Breach of Contract: If there was an express or implied agreement regarding financial support or property division, a breach of contract claim may be viable. This is why documenting agreements, even informal ones, is important.
• Quantum Meruit: This legal theory allows a party to recover the reasonable value of services rendered if there was an expectation of payment. For example, if one partner provided significant labor to improve the other partner's property with the understanding that they would be compensated, a quantum meruit claim might be possible.
• Resulting Trust: This type of trust arises when one person provides the purchase price for property, but the title is held in another person's name. A resulting trust may be imposed if it was not intended as a gift.

⚠️ Successful pursuit of these claims requires strong evidence and experienced legal representation. Consult with a Delaware family law attorney to assess the viability of such claims in your specific situation.

Practical Advice for Unmarried Couples in Delaware

❤️ Relationships are complex, and navigating them without the automatic legal protections of marriage requires careful planning. Here's some practical advice:

• Communicate Openly and Honestly: Discuss your expectations, goals, and financial arrangements with your partner.
• Document Everything: Keep detailed records of financial transactions, agreements, and contributions.
• Seek Professional Advice: Consult with an attorney, financial advisor, and therapist to navigate the legal, financial, and emotional aspects of your relationship.
• Prioritize Your Well-being: Take care of your physical and mental health, and maintain your own individual identity.

When to Consult with a Family Lawyer in Delaware

📅 It's advisable to consult with a Delaware family law attorney in the following situations:

• When entering into a cohabitation agreement.
• When purchasing property jointly.
• When planning for the future, including wills, trusts, and powers of attorney.
• When separating from your partner.
• When facing a legal dispute related to your relationship.

Disclaimer: This article is for informational purposes only. You should consult with an attorney to discuss your specific situation.