Common-Law Marriage in South Carolina: Legal Rights, Claims, and Advice from a Family Attorney

Understanding Common-Law Marriage in South Carolina: Myth vs. Reality

Many people mistakenly believe that South Carolina recognizes common-law marriage. This is generally not true. South Carolina abolished common-law marriage in 1911. However, there's a crucial exception: a common-law marriage validly created in another state that recognizes it will be recognized in South Carolina.

This distinction is vital. If you believe you have a common-law marriage, understanding the nuances of South Carolina law, particularly regarding marriages formed outside the state, is critical.

⚠ The Exception: Valid Common-Law Marriages from Other States

While South Carolina doesn't allow the creation of new common-law marriages within its borders, it adheres to the principle of "comity." This legal principle means that if a relationship qualifies as a valid common-law marriage in a state that *does* recognize it (such as Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, Texas, and the District of Columbia), South Carolina courts will generally recognize that marriage as valid.

For South Carolina to recognize a common-law marriage established elsewhere, you must prove the marriage was validly created under the laws of that other state. This typically involves demonstrating the following elements:

• ✓ Mutual Agreement to be Married: Both partners must have clearly intended to be married, not just to date or cohabitate.
• ✓ Cohabitation: The couple must have lived together as husband and wife.
• ✓ Holding Themselves Out as Married: The couple must have presented themselves to the public as a married couple. This can be evidenced by using the same last name, filing joint tax returns, referring to each other as husband/wife, and other similar actions.

Important Note: Meeting these requirements in South Carolina alone does not create a common-law marriage. The couple *must* have met these requirements while residing in a state that recognizes common-law marriage.

Proving a Common-Law Marriage in South Carolina: A Legal Challenge

Establishing a valid out-of-state common-law marriage in South Carolina can be complex and requires substantial evidence. The burden of proof rests on the party asserting the existence of the marriage. Here's what you'll typically need:

• 📁 Affidavits and Testimony: Testimony from friends, family, and acquaintances who witnessed the couple representing themselves as married in the other state.
• 💻 Documentary Evidence: Joint bank accounts, credit cards, property deeds, insurance policies, and other documents that show the couple presented themselves as married.
• 📊 Tax Returns: Filing joint tax returns as "married filing jointly" in the state where the common-law marriage allegedly occurred.
• 👫 Witness Testimony: Statements from individuals who observed the couple's relationship and can attest to their intent to be married.
• 🗞 Correspondence: Letters, emails, and other communications where the couple refers to each other as husband and wife.

Because common-law marriage claims are often contested, it is crucial to gather as much compelling evidence as possible. An experienced South Carolina family law attorney can help you build a strong case.

Legal Rights and Claims Arising from a Recognized Common-Law Marriage

If a South Carolina court recognizes a valid out-of-state common-law marriage, the parties are entitled to the same rights and responsibilities as those in a traditional ceremonial marriage. This includes:

• 💰 Division of Property: In the event of a divorce (called "dissolution of marriage" in some jurisdictions), marital property is subject to equitable distribution. This means it will be divided fairly between the parties, though not necessarily equally. South Carolina is an equitable distribution state.
• 👩‍🏫 Alimony (Spousal Support): A spouse may be entitled to alimony based on factors such as the length of the marriage, contributions to the marriage, and the financial needs of each party.
• 👪 Child Custody and Support: If there are children of the marriage, the court will determine custody and visitation arrangements based on the best interests of the child. Child support is also calculated based on state guidelines.
• ⚪ Inheritance Rights: A surviving spouse has inheritance rights if the other spouse dies intestate (without a will).
• 🏠 Healthcare Benefits: The right to be covered under a spouse's health insurance policy.
• 🔓 Social Security Benefits: Potential eligibility for Social Security spousal or survivor benefits.

Divorce and Dissolution of a Common-Law Marriage in South Carolina

Ending a recognized common-law marriage in South Carolina requires the same legal process as ending a traditional marriage: filing for divorce. The grounds for divorce in South Carolina are:

• ❌ No-Fault: Living separate and apart without cohabitation for a period of one year.
• ❗ Fault-Based: Adultery, physical cruelty, habitual drunkenness, or desertion for a period of one year.

The divorce proceedings will involve the division of assets, potential alimony awards, and if applicable, child custody and support arrangements. Due to the complexities involved, seeking legal representation is strongly advised.

Potential Legal Challenges and Strategies

Asserting or defending against a common-law marriage claim can be challenging. Here are some common legal issues and strategies:

• 💡 Disproving Intent: One party might argue that despite cohabitation and appearances, there was never a genuine intent to be married. Evidence to counter this could include lack of a formal agreement or inconsistent behavior.
• 🔎 Jurisdictional Disputes: The other party argues that the state where the common-law marriage was allegedly created does not recognize common-law marriage or that the couple did not meet the requirements of the state’s laws.
• 💬 Conflicting Evidence: Contradictory evidence regarding how the couple presented themselves. For example, one witness might testify they were introduced as husband and wife, while another says they were introduced as partners. A skilled attorney will need to assess and present this conflicting information effectively.
• 🛠 Strategic Discovery: Utilizing discovery tools (interrogatories, depositions, requests for documents) to uncover evidence that supports or undermines the claim of common-law marriage.
• 📚 Expert Testimony: In some cases, expert witnesses (e.g., legal scholars on the laws of other states) might be needed to clarify legal nuances.

Practical Advice from a South Carolina Family Attorney

• 📞 Consult with an Attorney: If you believe you may be in a common-law marriage situation, or if someone is claiming you are in one, seek legal advice immediately. A family law attorney specializing in South Carolina law can assess your situation, explain your rights and obligations, and develop a legal strategy.
• 🔍 Gather Evidence: Begin collecting any documents or information that could support or refute the existence of a common-law marriage.
• 📃 Be Prepared for Litigation: Common-law marriage cases can be contentious. Be prepared for the possibility of court proceedings.
• ❓ Understand the Laws of Other States: If you spent time in a state that recognizes common-law marriage, familiarize yourself with that state's specific requirements.
• 🔄 Don't Delay: Waiting to seek legal advice can weaken your case. Statutes of limitations may apply to certain claims.

Compensation and Potential Outcomes

The "compensation" or financial outcomes in a common-law marriage case depend heavily on the specific facts and circumstances. If the marriage is proven, the financial outcomes will mirror those of a traditional divorce, including:

• 💰 Equitable Distribution of Marital Assets: A fair division of property acquired during the (common-law) marriage.
• ⚖ Alimony: Spousal support, if warranted. The amount and duration of alimony depend on factors like the length of the marriage, the contributions of each spouse, and their respective financial needs.
• 👪 Child Support: If there are children, the court will order child support payments based on South Carolina guidelines.

If the marriage is *not* proven, the party claiming to be married will likely have no legal right to any of the other party's assets or support. However, other legal claims might still be possible, such as:

• 💰 Unjust Enrichment: A claim that one party unfairly benefited from the contributions of the other.
• 🏠 Constructive Trust: A legal remedy where the court imposes a trust on property held by one party for the benefit of the other.

Conclusion

While South Carolina does not permit the creation of common-law marriages within its borders, the recognition of valid out-of-state common-law marriages adds a layer of complexity to family law. Understanding the requirements for establishing such a marriage, the legal rights and responsibilities that arise from it, and the potential challenges involved is essential. If you believe you may be in a common-law marriage situation, seeking guidance from a qualified South Carolina family law attorney is crucial to protect your rights and interests.

Disclaimer: This article is for informational purposes only. You should consult with an attorney to discuss your specific situation.