Does Nevada Recognize Common Law Marriage?
Currently, the State of Nevada does not recognize common law marriage. By this, we mean that a couple cannot just live together for a number of years and be considered married. However, Nevada does have a unique provision in its statutes, NRS 122.050, which allows solemnization of marriage in certain situations. Essentially though, if the parties wish to solemnize their relationship, as Nevada is a "Marry at will" state, they may do so through a joint verified declaration stating that they are husband and wife . This section of the statute does not create a common law marriage, as stated in the law itself, it applies "only to the relationship of persons who establish that their relationship commenced before October 1, 2001." All other situations would fall under the category of "Marry at will," which is essentially a "marriage at any time" so long as the Parties are both competent to consent themselves to marriage.
The History of Common Law Marriage in Nevada
Common law marriage has been integral in the development of Nevada law. The western United States, like England before it, was populated at a time when in order to be legally married, couples had to apply for and obtain a license from a government authority. Back then, with no such convenience, official licenses required lengthy travel to the only central locations. Similarly, travel such as that was impractical in parts of sparsely populated Nevada. Thus, informal marriages of a "common law" nature were made necessary; social custom permitted couples who exchanged vows or marriages to be considered legally wed.
For example, shortly after the Pahlor family set off for California in 1860 in search of gold, the Pahtlors made a common law marriage. A second family from Cape Cod, just a few years later, became the Harveys. As the town of Virginia City went from barren valley to booming tramontane metropolis, Nevada’s population rose from 411, according to the 1860 census, to 62,155 in 1870. Families began forming in Virginia City and Reno included the Loves, the Gage, the Cummings, and the Boggs – all common law marriages.
Over time in Nevada, customs like these were consistently recorded. In 1927, the State Supreme Court resolved whether a marriage formed under a New Jersey statute could qualify as a common law marriage in Nevada. That statute prohibited common law marriage, but it provided that couples who had been married in one state and moved to another would be recognized as legally wedded in the new state as long as they met the requirements for marriage in that new state. Thus, the Nevada Supreme Court held that even though New Jersey forbade common law marriages, it would recognize New Jersey couples as married (despite only an informal ceremony) if they had met Nevada requirements for marriage and if they had originally intended to be married according to the statute.
As the centuries turned, Nevada moved from allowing common law marriage to outright forbidding it. In 1973, a statute came into effect formally ending all common law marriages in Nevada, with the exception of creating marital distributive rights of 90 days for an individual whose spouse passed away or became legally separated from him or her. Prior to NRS 122.050, the common law marriage law governed marital property interests and rights, and ownership was determined by determination of the community not by declaration of legal title.
The choice to end common law marriage arose out of some bad publicity Nevada received from famous people who were common law married at the time of their deaths. For instance, Frank Sinatra was married to Barbara Marx though she was not yet divorced from his estranged spouse, which upset Ava Gardner, who sued for a larger share of the late singer’s estate, saying she was married to him. However, although the couple had prepared themselves with a prenuptial agreement, they had not legally married. A ruling for Sinatra’s widow would have turned Sinatra’s entire estate into community property, and it ultimately did not.
Thus, Nevada’s statute prohibiting common law marriage arose when Nevada government was under scrutiny for accepting common law marriages and allowing the sharing of property such as in the situation with which Sinatra was presented.
Common Law Marriage Alternatives in Nevada
The good news is that Nevada does allow alternative statuses to common law marriage which give many of the advantages afforded in a marriage.
One such option is the Nevada domestic partnership, created by Nevada Legislature in 2009. Nevada domestic partnerships are similar to domestic partnerships in other states. However, two things make the Nevada domestic partnership relatively unique:
The first ensures that same-sex couples may now obtain the benefits and protections previously afforded to married couples. The second ensures that different-sex couples may enter domestic partnerships as well.
Broadly speaking, domestic partnerships function similarly to marriage. It allows couples to obtain powerful legal benefits, protections, and recognition often associated with the institution of marriage. These include:
In some cases, domestic partnerships are even available to couples who are siblings or closely related! While generally reserved for individuals carrying the "wrong" set of reproductive organs, there is nothing unsuitable in entering a domestic partnership with a close relative as well.
Domestic partnerships are often mistaken to be identical with civil unions. Civil unions functionally are limited to same-sex couples. Domestic partnerships, in contrast, are open to willing opposite-sex couples, same-sex couples, and siblings alike.
The requirements for forming a domestic partnership are far less demanding than those for traditional civil marriage. Either partner must simply be over 18 years of age. Both must both file notice of their intention to create a domestic partnership. Lastly, both parties must sign and submit the agreement to the Nevada Secretary of State.
Upon filing, the Nevada Secretary of State matches the notice of intention to the actual domestic partnership filing. If both documents line up—a relationship between two previously unmarried adults—the domestic partnership is legal.
The exact timeline to receive domestic partnership status varies by municipality, but it is typically one month or less. Applicants may also check status online at the Nevada Secretary of State’s website.
There are numerous powerful legal advantages to entering a Nevada domestic partnership.
Nevada domestic partnerships also allow authors of estate plans to rest easy. Domestic partnership agreements allow surviving partners to inherit assets that might otherwise be transferred elsewhere. This is particularly important to those who have spent years building their nest egg!
Healthcare decisions are equally important. Domestic partners have the right to serve as their partner’s primary caretaker. In some situations, it may even be legal for a domestic partner to discharge a spouse from the hospital.
Domestic partnerships also qualify for significant tax advantages. Under federal law, domestic partners may benefit from marital deductions, gifts, and other generous advantages. In addition, domestic partners are entitled to survivor benefits and social security privileges issued to the Department of Defense.
Finally, Nevada domestic partnerships carry powerful military benefits as well. Domestic partners are allowed to receive benefits through the United States Department of Defense, have access to military bases, and obtain burial rights.
Depending on your circumstances, a domestic partnership may be a more advantageous alternative to common law marriage. In any case, the benefits are clear and resounding.
How Moving to Nevada Affects Partners
If a couple established their common law marriage in a jurisdiction recognizing common law marriages, the mere act of moving to Nevada does not have the effect of terminating the common law marriage. A Nevada court will recognize the validity of the marriage for purposes of a divorce proceeding as long as the marriage was valid where entered into. However, obtaining a declaratory judgment from a Nevada Court regarding a common law marriage is a significant step for couples in this situation. Because common law marriages do not require a marriage certificate, a Nevada couple married by common law who separates or gets divorced is unable to provide a judge with the legal proof of the marriage. While it is possible to believe that a Nevada Court will assume a common law marriage entered into another jurisdiction remains in force, that assumption cannot be relied upon in a divorce proceeding. Instead a couple would have to provide the judge with the request for a declaration of their marriage, supported by sufficient evidence demonstrating proof of the common law marriage.
Legal Rights and Obligations of Partners
A couple with a common law marriage from another state may have a host of rights and responsibilities that a traditional couple does not. In Nevada, these rights may be unknown to those who don’t understand the state’s position on this type of unofficial union.
Inheritance Rights
Couples with a common law marriage in a different state have been granted inheritance rights in Nevada. For example, if a Nevada citizen was married in Washington but lived in Nevada with his spouse long enough for a Nevada court to allow common law to be a consideration, the spouse with the common law marriage would be entitled to a portion of the Washington estate.
Lifetime Economic Maintenance
If a common law marriage was established in one of the 11 legal states, Nevada will uphold the right of a partner to receive lifetime economic support from the other partner. If the relationship ends , a court can set part of that individual’s assets to be used as support for the former partner.
Community Property
If the court established the union as a community property marriage, the property may be distributed between the partners by the court if the individual died while the case was pending. For people who did not have a community property arrangement, the courts will only divide property that was obtained during the relationship—not what existed beforehand.
Alimony
Nevada courts may award spousal support based on the specific needs of the couple involved in the case. If alimony was awarded in the case of a legal divorce, the court may consider the alimony to be a source of income when deciding whether or not lifetime economic support is warranted.
Ensuring Protection of Relationships in Nevada
Couples can take proactive steps to protect their relationship in Nevada even if they are unmarried. An unmarried couple living together may draft a cohabitation agreement to set forth each of their expectations for the relationship while it is ongoing and to provide guidance in the event of a breakup. Similarly, a post-nuptial contract can provide ongoing legal protection for a spouse even after a divorce is obtained.
Nevada law is relatively favorable to individuals under both cohabitation and pre- (and post-) nuptial contracts. For example, Nevada law provides individuals in relationships that fall within the scope of typical cohabitation agreements with legal protections as a matter of contract. Indeed, cohabitation agreements are encouraged by Nevada law. NRS 123.070(1), which was enacted in 2010, states: A person who wishes to enter into an agreement pursuant to this section need not establish the statutory elements for palimony or cohabitation — namely, a marital-type relationship which justifies the imposition of rights and obligations not recognized in the absence of that relationship — before the agreement is signed.
And, as discussed above, the Nevada uniform prenuptial agreement act also governs what is and is not permissible to address in a post-nuptial contract. See NRS 123A.100 – 123A.200.
Thus, cohabitation agreements and pre- (and post-) nuptial contracts provide both counseling and legal guidance that can be used by the state to adjudicate disputes relating to the relationship.
The general court rule in Nevada is that courts will follow the terms of a validly created contract, regardless of whether the contract is a pre- or post-nuptial agreement or a cohabitation agreement. This is a general rule, however, and there may be circumstances in which courts will not follow the terms of the contract. In particular, this might be the case in a situation in which both parties to the contract were unclear as to the meaning and purpose of particular contract terms when they signed the contract.
The Future of Common Law Marriage in Nevada
While it seems unlikely that any new legislation regarding common law marriage or cohabitation will be enacted in the near future, new case law could change how the common law marriage statute is applied. In 2013, a Clark County District Court found virtually the exact situation covered by NRS 122.050(1)(a) and (b) and held that there was a common law marriage based on a 25 year cohabitation, which was different than the recent Nevada Supreme Court opinion. In fact, the difference between the two cases is very interesting because the 2013 opinion never mentioned the Nevada Supreme Court opinion despite the fact that they both occurred 25 years after the parties had cohabitated and the parties in the 2013 decision never considered themselves married.
The 2013 District Court case was Davis v. Davis, 129 Nev. Adv. Op. 105; 313 P.3d 891 (2013) . In Davis, the court mentioned that there was significant opposition to "common law marriage" as well as the procedure for "decree of divorce from the bond of civil marriage." The court observed that when the parties in Davis commenced their cohabitation, it was legal to be together in that state without being married, and if there were a divorce, the court could declare the marriage void ab initio. The court also concluded that there was a common law marriage even though it had been 17 years since the last issue (or child born to the parties). The court further observed, "[t]hus the act of cohabitation, extending for a significant period of time, is as strong a basis as the birth of issue." Even though the length of at least one prior relationship was only three years, the District Court considered the parties to have a common law marriage for the 25 year duration of the relationship.