South Carolina is one of the few states that still recognizes a common law marriage. Whether you are married or not can have very important legal consequences. In South Carolina, you can establish a common law marriage simply by the intent of each party to be married to the other and a mutual understanding between the parties of their intent to be married. However, you can find yourself married in South Carolina even when you had no intention of being married. There is no set list of factors and the court looks to the circumstances surrounding the relationship in order to decide whether a common law marriage existed. Instead, the court looks at all the factors surrounding the relationship.
SOUTH CAROLINA COMMON LAW MARRIAGE AND DIVORCE
South Carolina common law marriage has a rich and long history in the case law of the state. The problems usually arise when the parties separate and there is an argument over whether one party is entitled to a share of the property acquired during the relationship and possibly even alimony. If the parties are married, then all property acquired during the relationship will be equitably divided, usually on a fifty-fifty basis. There is also the possibility that one of the parties may be entitled to alimony for life. If they were not married, the party that was not the breadwinner may have no claim to any of the property and could be left penniless. Since there is no such thing as a common law divorce, the court usually is called upon to decide whether the parties were married and they must obtain a South Carolina divorce.
Owens is an example of a South Carolina divorce case where a common law marriage was found. The parties began cohabiting in 1984 shortly after the wife obtained a divorce from another man. The woman began using the man’s last name. Several years later the parties separated and she filed for divorce. She testified that the parties began living together as husband and wife in 1988. She also presented documentary evidence showing that the parties had entered into numerous contracts as husband and wife, including an application for a mobile home license, the purchase of a mobile home, the purchase of insurance, and the opening of a checking account. The woman also called several witnesses who testified that the parties held themselves out as husband and wife. The parties did not file joint tax returns, however, as the woman did not wish to jeopardize her receipt of Social Security disability benefits, which were her only income source. The court found that there was a valid South Carolina marriage and that the woman was entitled to an equitable division of the marital property. Owens v. Owens, 320 S.C. 543, 466 S.E.2d 373 (Ct.App. 1996).
NOTE: If you are receiving SSI and are found to have been married, Social Security can demand payment for back benefits if you did not report that you were living with someone in a marital type of relationship.
If you are living with someone and do not intend to be married, you need to be careful to avoid all of the indications of a married couple. Do not use the same last names, do not introduce each other as man and wife, do not enter into contracts as husband and wife or file joint tax returns. One common misconception is that the parties have to live together for seven years. That is absolutely not true. A South Carolina marriage can be formed in as little as one night. A marriage was found where evidence showed that the parties lived together for two years, listed themselves as husband and wife in the telephone directory and on insurance and income tax forms. Although both parties to the marriage testified that they did not live together as husband and wife, the court still held that a marriage existed. Jeanes v. Jeanes, 255 S.C. 161, 177 S.E.2d 537 (S.C. 1970)
SOUTH CAROLINA COMMON LAW MARRIAGE AND DEATH
The other situation where it is important whether there was a common law marriage is upon the death of one of the parties. A spouse in entitled to survivor Social Security benefits, all of the deceased spouse's IRA's and retirement accounts and to at least one third of the deceased spouse's estate. If they are found to have been married for over ten years, the surviving spouse can also be entitled to additional Social Security or Veteran's benefits. Again, this can be the difference in the surviving partner being left penniless and homeless or with the same benefits as if there had been a formal marriage. In Greenfield's Estate, the court found their was a marriage when the heirs challenged the woman's standing as widow on grounds that she had used her maiden name in all business transactions, and that the man had stated to several witnesses that he had no wife. The Court found that during their ten years of cohabitation, the woman had undertaken the “usual duties and responsibilities of a wife” and that she and the man had received guests and had been received as guests in others homes as husband and wife. In re Greenfield's Estate, 245 S.C. 595, 141 S.E.2d 916 (S.C. 1965).
U.S. v. Seay, 718 F.2d 1279 (4th Cir. 1983) where the government established the existence of a common law marriage to prosecute a grandmother for benefits fraud, and Day v. Secretary of Health and Human Services, 519 F.Supp. 872 (D.S.C. 1981) (the inquiry which must be made is whether a South Carolina court would have found the plaintiff married to retiree on the date on which she applied for wife's benefits under the Social Security Act; court discussed several theories to support finding the parties were common law married so that the Secretary's imposition of recoupment procedure was in error).
A South Carolina Family Law Attorney can assist you if you have questions about whether you are or have been common law married in South Carolina. The attorney can review the facts of your case and advise you on your rights under the law of South Carolina.
Wayne Patterson has represented parties in numerous common law marriage cases in probate court and family court. He practices in all counties in South Carolina
10 Century Dr.
Greenville, SC 29607
Statute of Limitations
Section 62-2-802(b)(4) states that a surviving spouse does not include:
(4) a person claiming to be a common law spouse who has not been established to be a common law spouse by an adjudication commenced before the death of the decedent or within the later of eight months after the death of the decedent or six months after the initial appointment of a personal representative; if the action is commenced after the death of the decedent, proof must be by clear and convincing evidence.
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States that Recognize a Common Law Marriage
THE MYTH: There is a common misconception that if you live together for a certain length of time.seven years is what many people believe, you are common law married. This is not true in South Carolina or any other state.
STATES THAT RECOGNIZE COMMON LAW MARRIAGE
Only a few states recognize common law marriages:
Georgia (if created before 1/1/97)
Idaho (if created before 1/1/96)
New Hampshire (for inheritance purposes only)
Ohio (if created before 10/10/91)
Oklahoma (possibly only if created before 11/1/98. Oklahoma's laws and court decisions may be in conflict about whether common law marriages formed in that state after 11/1/98 will be recognized.)
Pennsylvania (if created before 1/1/05)
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