Common Law Marriage

The basic requirements of marriage are fairly straightforward: the parties must agree to marry, must be eligible to marry, and must go through whatever forms are required for marriage in that state where they intend to marry. Marriage is not, however, treated uniformly throughout the states. The formal requirements vary from state to state. In general, parties must secure a marriage license and participate in some form of a ceremony.

There are many people who have not participated in a valid ceremonial marriage but still live and share life together as though they had. Their relationship might instead be defined by an alternative doctrine. Common-law marriage is an example of one such alternative doctrine. It differs from ceremonial marriage in terms of the way in which it is entered into. While it lacks the same formalities (such as obtaining the marriage license), the other substantive limitations still apply. A formal divorce action is necessary to end a common-law marriage, just the same as a ceremonial marriage.

What are the basic elements of common law marriage?

To have a common-law marriage, the parties must first intend to be married. In addition, they must continuously cohabitate and hold themselves out as husband and wife. The “holding out” element entails the public’s perception of the couple, as well as establishing uniformity and consistency. There is essentially no such thing as a secret common-law marriage. “Holding out” might be evidenced by, among many other things: the intent and belief of the couple with respect to the relationship, opinions from members of the community as to how the community regards the couple, use of the same last name, designations on life insurance policies, wedding bands, how the parties refer to each other, and even how their bills are paid and mail is addressed.

It is important to remember, however, that not every state recognizes the doctrine of common-law marriage. According to the National Conference of State Legislatures, only nine states, including Kansas, recognize common-law marriage (along with another five that have “grandfathered” common-law marriage).

Does Missouri recognize common law marriage?

Missouri is not among the states that recognize the common-law marriage doctrine. Under Missouri Revised Statute § 451.040, “common-law marriages shall be null and void.” There is an exception for common-law marriages contracted before 1921.

In order to give full faith and credit to the laws of other states, Missouri will also recognize marriages that have been validly contracted in a different state, as long as the marriage comports with the other state’s requirements. Even if the other state recognizes the validity of a common-law marriage, however, Missouri may not recognize the marriage it if it is found to violate public policy.

What Happens to Property at Divorce?

The disposition of property can often be a contentious issue for parties seeking a legal separation or the dissolution of a marriage. As part of the dissolution process, each party will submit documents to the court that illustrate their respective incomes and expenses, as well as a statement of non-martial and marital assets and debts. During the proceeding, the court will then, pursuant to Mo. Rev. Stat. § 452.330, set aside each spouse’s own separate property and further divide the marital property and marital debts as it deems proper.

In general, any property owned by a spouse prior to the marriage remains that spouse’s sole and separate property. It is non-marital property. Marital property, on the other hand, is considered to be all of the property acquired by either spouse during the course of the marriage. But there are several exceptions. If a spouse receives property as a gift, or by means of inheritance, that property is not martial. Any property that is acquired in exchange for any property a spouse owned prior to the marriage is also not considered to be martial property. Property obtained after a decree of legal separation is excluded as well. Parties can further agree to exclude property by way of a valid written agreement.

Aside from the exceptions noted above, any property acquired during the marriage will be presumed to be martial property. Title alone is not enough to sway the presumption. Even if property is titled individually in one spouse’s name, it will be presumed to be martial. It is possible to overcome the presumption by showing that the property falls under one of the exceptions. In a similar vein, separate property that has been mixed, or commingled, with martial property does not necessarily become marital property.

When the court divides the marital property between parties in a dissolution or legal separation, it will take a number of relevant factors into consideration. The value of the non-marital property set aside to each spouse and the custodial arrangements made for any minor children are among such factors. The court will also weigh the desirability of awarding the family home to the party with custody of the children. In addition, the court will consider the economic circumstances of each spouse, the conduct of the parties during the marriage, and the contribution of each party in acquiring the marital property. The role of a spouse as a homemaker shall be taken into consideration when determining that spouse’s contribution.

Contributions by Kelly Thompson, Law Clerk

Thinking Ahead: Attorney Fees

The beginning of a new year often represents the opportunity to start fresh. For many, this means committing to resolutions such as getting in shape or completing unfinished projects. For others, beginning anew involves other significant changes such as defending the dissolution of a marriage, seeking modification of child custody or support, bankruptcy and paternity actions.

On the tail end of the holiday season, the thought of paying any lump sum towards attorney fees can often seem overwhelming or simply not feasible. But with tax season just around the corner, the next few months provide the perfect opportunity to begin planning and saving. Consider using this year’s tax refund as a payment towards retaining an attorney to help you navigate your legal matters. If you are currently represented and owe outstanding fees, using your tax refund to pay the remaining balance is a simple way to get caught up.

In general the legal process can often be time-consuming and expensive. Once you have hired an attorney to represent you, there are several measures you can take to help minimize your own attorney fees.

• Identify and communicate your goals and expectations. It might be helpful to rank them according to what you feel the most strongly about. Discuss your goals and expectations with your attorney to avoid future misunderstandings. Be reasonable and realistic. Remember that resolving disputes amicably can not only set a positive tone moving forward, it can also spare you from a financially and emotionally draining courtroom battle. Recognize the importance of being agreeable and knowing when to settle. 
• Keep track of your questions and issues that you would like to discuss. Making a list will allow you to ask all of your questions at one time without forgetting anything. Contacting your attorney by email can often be a more cost-effective approach to communication. While you will still be billed for the time spent reviewing and responding to your email, the fees will generally be lower than those for phone calls during which it is easy to become sidetracked. Keep in mind that other members of the attorney’s staff with lower hourly rates, such as law clerks and paralegals, may be able to assist you with certain questions or concerns related to administrative matters such as billing. 
• When you speak to or meet with your attorney, take notes to help you remember what was discussed and any instructions your attorney may have given you. This will help eliminate confusion and unnecessary delay in the form of your attorney re-explaining matters to you or making repeated requests for information. Be prepared. Keep a calendar with important dates and deadlines. 
• Respond promptly and completely to your attorney’s requests. In addition to collecting the requested documents, keep them organized. This will allow your attorney to spend more time working with the information itself and less time trying to dig through an unorganized stack of papers. 
• Remaining calm will also allow you to listen and communicate more effectively. One key to remaining calm is managing your own stress and taking measures to protect your own well-being. Remember that the process can often be very emotional, especially when it comes to family law matters. It is not uncommon to experience anger, frustration, sadness, and depression. While your attorney will assist you through the legal process and protect your interests, he or she is not a licensed psychologist. Finding a therapist or a counselor to help you work through the emotional components will allow you to spend the time you have with your attorney more productively. 
• Finally, remember that your attorney can only estimate costs and fees at the outset of the representation. Recognize that circumstances often change and the budget might need to be readjusted throughout the process. 

Contributed by Kelly Thompson, Law Clerk