Community Property States

Eight states - Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington - follow community property. Five of these states (Arizona, California, Nevada, New Mexico, and Texas) were at one- time Mexican territories. The Spanish influence in that country community property then became law. Idaho and Washington were never under Mexican Rule, but replaced their common law system of marital property by enacting community property statutes during the nineteenth century. Louisiana's civil code derives from both French and Spanish law. In 1984, Wisconsin effectively became the ninth community property state when it enacted the Uniform Marital Property Act. It states that the classification for property distribution of reflected a dual property scheme. The basic principles of community property are consistent among the states, however significant variation exists in both the statutes and case law of these states.

Community property law defines the property owned by either or both spouses as either separate property of the individual spouse or community property, owned in individual equal shares, by both spouses. Following Spanish community property law, the property that a spouse owns at the time of marriage, or acquires after the marriage has ended, is that spouse's separate property. Gifted, devised or descented property remains that spouse's separate property. Today, community property law frequently allows spouse's to contract to hold property as separate property, and to establish separate property by judicial decree.

Property acquired during the marriage is presumed to be community property, and the burden of proving otherwise is placed on the spouse attempting to establish that an asset held by a married person in a community property state is not presumed to have been acquired during the marriage.

Traditionally, property division on divorce in community property states was allocated according to title. Each spouse received his or her separate property and one half of the community property. California, Louisiana and New Mexico remain the only states requiring equal division of community property on divorce. Today, six of the nine community property state have adopted equitable distribution statutes, authorizing a variance from the strict equal division of community property. Arizona, Idaho, Nevada, Texas, and Wisconsin allow the divorce judge to allocate community property in other than equal shares. Washington's statute authorizes equitable division of all property, regardless of its separate or community character.

Common Law Marriage States

Under the common law marriage doctrine, you are considered legally married, despite not having a marriage license, a ceremony, or a marriage certificate, if you meet specific requirements listed in the statutes of the jurisdiction where you live. The benefits of common law marriage include the right to inherit upon the death of one spouse and the right to spousal support and an equitable division of property should the marriage terminate. The jurisdictions that recognize common law marriage and the requirements of each are listed below. In addition, various other states will recognize a common law marriage if it was valid in one of these states and meets these requirements, even though those states do not themselves have statutes providing for common law marriages.

Alabama. In this state, the parties must agree to be husband and wife, they must have the mental capacity to enter into and understand such an agreement, and they must consummate the marital relationship.
Colorado. In order for a common law marriage to exist in Colorado, the relationship must be proven by the cohabitation of the common law spouses and their reputation for being married.
District of Columbia. In the District, a common law marriage is established by the parties' explicit intent to be married and by their cohabitation.
Iowa. A common law marriage is established in Iowa by the parties' intent and agreement to be married, their continuous cohabitation, and their public declarations that they are husband and wife.
Kansas. In Kansas, the man and woman must have the mental capacity to marry, they must agree to be married at the present time, and they must represent to the public that they are married in order for a common law marriage to exist.
New Hampshire. This state recognizes common law marriages only upon the death of one of the spouses. In other words, common law marriages are recognized in New Hampshire for inheritance purposes only.
Montana. In Montana, the parties must have the capacity to consent to marriage, they must agree to be married, they must cohabitate, and they must have a reputation of being married.
Oklahoma. The parties must be competent, agree to enter into a marriage relationship, and cohabitate in order to be considered as having a common law marriage.
Pennsylvania. A common law marriage is established in Pennsylvania by the exchanging of words between a man and a woman indicating an intent to be married at the present time.
Rhode Island. In Rhode Island, a common law marriage exists if a man and woman have a serious intent to be married and engage in conduct that leads to a reasonable belief by others in the community that they are married.
South Carolina. In this state, if a man and woman intend for others to believe they are married, a common law marriage may be established.
Texas. If a man and woman in Texas sign a form provided by the county clerk, agree to be married, cohabitate, and represent to others that they are married, a common law marriage exists. Utah. In Utah, a common law marriage is established if the man and woman are capable of giving consent and getting married, if they cohabitate, and if they have a reputation of being husband and wife.