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Is my employee common law married?

published in McAfee & Taft EmployerLINC | January 15, 2020

Oklahoma remains one of about only a dozen states that recognize common law marriages.  Despite the Legislature’s sporadic attempts to effectively abolish such marriages, the Oklahoma Supreme Court has recently determined in the case Erlandson v. Coppedge that common law marriage in Oklahoma is still alive and well.

The effects of a common law marriage are no different than those of a traditional ceremonial marriage. During the marriage, if an employer chooses to offer benefits to “spouses” (e.g., insurance) or is required to provide certain benefits to “spouses” (e.g., time off from work under the Family and Medical Leave Act, those same benefits must be afforded to spouses married by virtue of common law. Similarly, once a common law marriage is established, it can only be dissolved in the same manner a ceremonial marriage may be — divorce litigation.

A common law marriage exists if, at any point while two unmarried people are living together in an exclusive relationship, there is a meeting of the minds that — notwithstanding the fact they never appeared before a priest, minister, rabbi, or justice of the peace — they “consider” themselves married and hold themselves out to the public somehow as being such.

There is no single act that is guaranteed to automatically cause two people living together to suddenly become married by common law. Filing a joint tax return doesn’t necessarily do it. One person designating the other as a spouse on an insurance form doesn’t necessarily do it. It’s important to note, though, that each of these acts can be used as strong evidence to support a claim of common law marriage. And there’s no minimum amount of time two people must live together before a common law marriage can be established.

Common law marriage? Get it in writing.

If you’re an Oklahoma employer and you believe there’s any question as to whether an employee is married (thereby creating a situation in which you’re required to provide benefits or time off under the FMLA), have your employee and the spouse sign a simple one-page Common Law Marriage Affidavit, which you can obtain from a McAfee & Taft attorney.

If your employee is not already married by virtue of common law, he or she will be as soon as they sign that affidavit, so have the rice ready.