Divorce vs. Annulment – What’s the Difference in Oklahoma?
Video Transcribed: Does Oklahoma still recognize common law marriage? I’m Tulsa attorney James Wirth, and I’m about to tell you the answer to that question. So, it’s simple as that, yes Oklahoma does still recognize common law marriage. It can be complicated, but the simple answer is yes.
About 10 out of 50 states recognize common law marriage. Some of them are trying to limit it in some degree, and there’s been some speculation multiple times in Oklahoma that Oklahoma has gotten rid of common law marriage. One of the more recent times that that’s occurred is back in 1999.
Essentially we’ve got Oklahoma statute that list out how to go through the formal process of getting a marriage license and filing it with the court. It’s a title 43, section five, and it lists out all of those requirements. In 1999 there was a legislative change to that statute that added a subsection E, and that sub section said, “The provisions hereof are mandatory and not directory, except under circumstances”, not relevant here.
By putting that in there, lots of people thought it may have been the legislative intent to say, “To get married in Oklahoma, you have to follow the statute, you have to file a marriage license with the court clerk.” But, the courts have subsequently interpreted common law marriage cases after this went into effect, and they have not found this to abolish common law marriage. So it still exists in Oklahoma.
Even though in around 40 states it doesn’t exist, if you get a common law marriage in Oklahoma, established due to full faith and credit in the US constitution, other states have to recognize that marriage as well. The important thing to know about a common law marriage is that once it is established, the only way to dissolve it is through a divorce, just like a regular marriage. So it is a real legit marriage once it’s established. Just sometimes it’s not real clear if and when it has been established, and that’s why we have to go to court to determine these things.
What are the requirements to enter into a common law marriage? It’s very simple to say, it sometimes can be more difficult to prove. Essentially it’s that there was an agreement to be married. If you and your significant other mutually agreed to be married, you are married under Oklahoma’s common law, but sometimes that’s difficult to prove. To prove that you’re in a common law marriage is really what it often comes down to. The party wanting to prove a common law marriage has to establish that a common law marriage exists by clear and convincing evidence.
How do you prove what was in the mind of your spouse or significant other at that time? Well, it’s going to have to be pursuant to other evidence because you’re no doubt going to testify, “Yes, it is my understanding we had a meeting the minds at this moment to be married. We said we wanted to be married.” But we’ve got to look for external evidence if we’ve got to meet that burden of proof of clear and convincing evidence.
The two most common and definitive of those are tax returns because those are signed under oath, and if you mark married filing together and send that off to the IRS, then you’re telling the IRS that you’re married, which is a pretty good evidence that you have an intent to be married.
The second best one is an affidavit of common law marriage submitted to your employer or your insurance company in order to get your spouse or significant other on your health insurance. That also, under oath, affidavit, “I am common law married”, excellent evidence that there was a mutual agreement to be common law married.
Other things that are not as definitive but are very important. Sometimes people have informal ceremonies and there’ll be people in attendance there. Their witness testimony would be good. People hold themselves out, tell people that they’re married. If your friends and family will come in and testify, “Look, they call each other husband”. “They call each other wife”, “They call each other spouse”, that’s great stuff. If you’ve got real estate that’s in the deed of you and your spouse as husband and wife, that’s excellent evidence.
If you took on your significant other’s last name. Those are all good things. All of those put together can make a determination by the court whether clear and convincing evidence exists, you had a meeting of the minds to be common law married.
Once you are common law married, like I said, if you want to undo that, you can’t just do a common law divorce, that doesn’t exist. You have to go through a regular dissolution of marriage process. That can sometimes be complicated when people don’t do that. Because a lot of times, the more complicated cases we see, they’ve entered into a common law marriage sometimes without knowing it, sometimes with knowing it.
They didn’t dissolve it, they got into other relationships, they have other kids. Then we’ve got a presumption that their prior spouse is the father of the child instead of their current spouse, because their current marriage is going to be void because they were already married. Or, the circumstances that we worry about, somebody comes into a lot of money later and now that significant other from the past could allege a common law marriage.
Because of that, you want to be very careful to know when you’re entering into a common law marriage, to only do that knowingly. If that relationship ends, you need to go through the proper process through the court to dissolve the common law marriage, so that if you win the lottery 20 years from now, they don’t come out of the woodwork coming after it. If you die, they don’t come after your estate. If you have kids with somebody else, there’s not a presumption that the person you consider to be your ex is the father.
That’s the general information, but if you have something in this ballpark of circumstances you’re going to want better than general information. You’re going to want specific information based on your circumstances. For that, talk to an Oklahoma attorney. You want to talk to somebody at my office, go to makelaweasy.com.
