Divorce and Common Law Marriage in Rhode Island


For much of human history, marriage was a private matter that people decided for themselves. Over time the church, and state stepped in to formalize the agreement, but to this day some people choose to live together as a married couple without a state-sanctioned marriage license. Do they have a "common law" marriage, or are they just living together?

That's a complicated question, and one that Rhode Island courts have been trying to answer for some time.

Rhode Island, and nine other U.S. states (and the District of Columbia) recognize the validity of common law marriage. That means a couple who agrees they have a common law marriage can access Rhode Island family court to divorce, to divide marital assets (including retirement accounts), and to seek spousal support.

But before you can deal with these complex issues in court, you may first have to prove that your marriage is valid.

Get legal help you can rely on from Warwick, RI divorce lawyer Paul J. Ferns.With 15 years of family law experience, he is well prepared to handle the complexities of a common law marriage divorce, building a strong case on your behalf.Contact attorney Paul J Ferns online or call 401-714-5526 to schedule a free initial consultation.

Proving a Valid Rhode Island Common Law Marriage

It's a common misperception that a relationship becomes a common law marriage if a couple lives together for seven (7) years. That's not true. The Rhode Island Supreme Court recently clarified the definition of a common law marriage in a case involving a couple who lived together 23 years:

  1. The parties must have the capacity to marry (they are not already married and are competent to get married)
  2. The parties both intend to be in a marital relationship, and
  3. The parties conduct themselves in a manner that causes people to think they are married

The first point can be easily determined, but the last two points leave room for interpretation. Let's look at #3. What might make people – and the government - think you are married?

  • Having a joint savings or checking account
  • Filing taxes jointly
  • Listing each other on survivorship documents (like insurance policies)
  • Owning a home or other real estate together
  • Wearing a wedding ring
  • Filling out paperwork as if you were a married couple
  • Acting in such a way as to create a reputation in the community that you are married (other people can corroborate that you consider yourselves to be married)

The Question of Intent

Now let's look at #2 – intent. That was the issue in the recent Supreme Court case, Luis v. Gaugler. The judge looked at a dizzying array of facts and came to the conclusion that the couple did NOT have a common law marriage, even though they had lived together for 23 years, talked about each other as husband and wife, raised a child as co-parents, wore wedding rings, and had even exchanged an engagement ring at one time.

They didn't file taxes jointly or own a home jointly. They shifted how they depicted themselves – as married or unmarried – depending on what was most advantageous in a given situation. And finally, on whether there was "present and mutual intent" to be husband and wife, the "wife" thought there was; the "husband" said there was not.

The court agreed with him.

And that's the challenge of common law marriage. He may have had intent at one time, but when did that intent begin and end? Without some legal contract, it can be hard to prove intent.

Will This Case Change Common Law Marriage in Rhode Island?

It's up to the legislature to decide if common law marriage will continue to exist in Rhode Island. Until the law changes, you CAN bring a case for common law divorce to family court.

You and your spouse may have no difficulty in agreeing that you are married. Your divorce may proceed just as any other divorce case. Attorney Ferns works to keep tensions low and cooperation high by treating all parties with courtesy and respectful. His clients appreciate his calm, measured approach.

Whatever the challenges, Mr. Ferns will stand by your side throughout the process, always available to answer your questions. Get the legal help you need and the caring, personal attention you deserve. Contact the Warwick family law office of Paul J. Ferns: 401-714-5526.

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