The Basics of Common Law Marriage in Kentucky: What You Should Know

Common Law Marriage Explained

Common law marriage is a customary method of entering into a marital relationship that occurs without a formal ceremony or obtaining a marriage license. The United States is one of the few countries in the world that recognizes common law marriage as legally valid, and it is only recognized in select states. In the past, before formal marriage licenses became the legal symbol of matrimony, common law marriage was widely accepted in lieu of government-issued marriage licenses. Over time, as flexibilities such as no-fault divorce provisions and social security benefits became available to legally married couples, formal marriages gradually gained precedence over common law unions .
Although most states no longer recognize common law marriage, the Commonwealth of Kentucky does recognize it. However, there are very defined requirements that must be met to establish a valid common law marriage in Kentucky. According to the Kentucky Department of Vital Statistics, "A common law marriage must meet the same requirements [federal law] observed if a license had been obtained prior to the marriage. However, either person may obtain a marriage certificate indicating the date, but a certificate is optional."
The following requirements must be met in Kentucky to establish a common law marriage:

Legality of Common Law Marriage in Kentucky

A couple may enter into a common law marriage if they satisfy the requirements for common law marriage under the laws of the particular state where the couple resides. In Kentucky, there is no formal common law marriage and, after June 30, 1971, there is no longer a way to enter into a common law marriage. Franklin Circuit Court held in Wells v. Wells, 204 Kan. 60 (1969) that the common law marriage doctrine was foreclosed in Kentucky in 1971 by statute. Even though there is no longer a way to enter into a common law marriage in Kentucky, domestic relations, estate, and property laws are still impacted by common law marriages that had previously been entered into prior to the cutoff date. All previous common law marriages created are still considered valid despite the 1971 law because the 1971 law did not reach backwards into the past and terminate those common law marriages. Common law marriage is a legal marital status in Kentucky and is governed by Kentucky law just as any other legally entered into marriage. There is a duty of evidence in establishing a common law marriage based on persuasive evidence. Commonwealth v. Wolford, 665 S.W.2d 708 (Ky. 1984).

How Out-of-State Common Law Marriage Works

Unlike Kentucky, many states outside the Commonwealth recognize common law marriages as legally valid. In 2015, Kentucky enacted KRS 402.055, which provides exceptions for common law marriages entered into in colonial Virginia from January 1, 1776 to June 30, 1852. The exception for colonial Virginia is in line with historical precedent, as Kentucky was originally part of Virginia, and the Court system in Kentucky continues to recognize certain circumstances where a Virginia marriage applies in Kentucky. Outside of these exceptions created by the General Assembly, it is well settled that if a common law marriage is validly contracted in a state where common law marriage is recognized, it will be considered valid in Kentucky. A husband and wife who enter into a common law marriage are considered to be legally married under Kentucky Law. Thus, their status as married individuals continues through the course of the relationship, and divorce is required to formally end the relationship.

Common Law Marriage Alternatives in Kentucky

For individuals who are cohabiting in Kentucky and are seeking ways to establish their legal rights without the existence of common law marriage, there are alternatives available.
Cohabitation Agreements: Unmarried couples can create a cohabitation agreement that outlines their intentions with property, finances, and other matters that spouses typically sort out when divorcing. A written agreement can be extremely valuable to set forth how assets and debts will be treated and defined in the event of separation or death of one of the parties.
New Domestic Partnership Law: In 2011 , the Kentucky House passed legislation that authorized a new form of domestic partnership under which same-sex or opposite-sex couples could seek licenses to have their relationship formally recognized. The new law took effect June 8, 2011. A couple must inquire as to eligibility requirements from the state office of vital statistics prior to applying.
On-Campus Unmarried Couples: Moreover, beginning in July 2011, the University of Kentucky is extending educational benefits to same-sex couples who meet certain criteria. It is not yet clear whether any other universities or colleges in Kentucky will be following suit at this time.

What Happens If You Don’t Have a Common Law Marriage

When a couple assumes that their romantic relationship is recognized as a common law marriage in Kentucky, but it truly is not, there can be numerous legal and financial ramifications. For example, when breaking up, no one may have rights to equitable distribution of each other’s assets, support, or even legal debts. Tax implications can come into play, depending on how the couples have filed previous tax returns. If they have been filing married filing joint, they could be receiving a notice from the state that they incorrectly filed and will owe penalties and interest. Likewise, deducting student loan interest may not be allowed, as you are not "legally married." Penalties for unemployment may also ensue, where an unmarried person quits their job but is not eligible for unemployment benefits.
In addition to these financial concerns, the cohabitating individuals may be denied the ability to claim benefits that would typically pass to a spouse including social security, health insurance, and any other spousal benefits that exist under third-party contracts or government programs.
When attempting to establish rights related to financial or legal benefits, the burden of proof to show that there is a common law marriage falls upon the individual making this argument. Typically, this is done by proving that they lived together as husband and wife and presented themselves to the public as husband and wife. Without this proof, they will be unable to receive the financial and legal benefits believed to be theirs under the common law marriage statutes of the state.
It is vital to consult with a Lexington divorce lawyer, even if you do not consider yourself married and you are ending the relationship. There may still be significant financial and legal assets that need to be divided. Unmarried couples are not provided the same protections or supports offered to legally married couples upon separation.

Tips for Legal Protection of Unmarried Couples

When it comes to protecting the legal rights of unmarried couples in Kentucky, there are several steps you can take to ensure that you are protected. Contracts In 2015, the Kentucky legislature passed a law allowing couples to cohabitate via "declaration of domestic partnership". Although it is a statutory creation, the declaration cannot be used to amend custody or child support orders. So when and if an unmarried couple separates, the declaration cannot be used to establish child support or custody of their child. That is why it is so important that you hire an attorney to help you prepare an appropriate parenting plan when you have a child outside of wedlock. Estate Planning Another way an unmarried couple can protect themselves is through proper estate planning. Having a will in place is incredibly important, as State law will ultimately determine what happens to open assets of unmarried persons upon passing. However, a will does provide an opportunity to direct your estate to those people that you wish . For instance, it can be written to specifically exclude certain relatives from receiving any benefit. It is important to note that if you don’t have a will, the statutory provisions of the state will kick in to determine what happens to your property, as set out here. Therefore, it is imperative to have your affairs in order by making sure you have an up-to-date will prepared by an attorney. Healthcare Directives Hand in hand with estate planning is preparing for healthcare decisions. This includes things such as assigning someone as your representative to make decisions about your healthcare if you become incapacitated and unable to speak for yourself. A Medical Power of Attorney allows you to designate that person. It is important to have a Medical Power of Attorney in place to protect you from the decisions of family members that may not respect your wishes. Unfortunately, there have been many tragic cases where this has happened and should always be avoided by having the proper documents in place.