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Legal Myths That Persist: Common Law Marriage

Common Law, Newspaper

There are many “legal myths” that persist in the minds of the populace to this very day. This blog illuminates the often called, “Common Law Marriage.” Let me start by saying this – There is no common-law marriage in Nevada. Indeed, there hasn’t been for 80 years. In 1943, Nevada enacted a statutory prohibition on common-law marriages. In Nevada Revised Statute 122.010 the Nevada Legislature prohibited all common-law marriages that occurred after March 29, 1943. In Nevada, a marriage is a civil contract, which requires the consent of both parties, who are capable of contracting. Consent alone is not enough, there must be a solemnization of the marriage. Thus, simply living together does not create a marriage. Phew – you are safe!

While there is not an “oops, we are married” issue under common-law marriages, Nevada law does provide that if a couple holds themselves out to be married, when they are not, the law will treat them as if they are married! This means that if you tell the world you are married when you aren’t, or take each other’s last names, or start a business as “spouse and spouse”, you are prompting a divorce and division of your assets as if you were married - if you break up. This means that you are then playing the game of what is or is not community and separate property assets and debts – including retirement assets!

Another often engaged issue is placing a significant other on title to your home. DO NOT DO THIS WITHOUT LEGAL ADVICE! I cannot stress this enough! This is folly. So many people think that putting a significant other on title is harmless, or that it simply means that they are a joint owner. What this does is affirmatively tell Courts and others that you are joint owners, that each party owns 50% of the property and that the significant other who is deeded onto the property is gifted 50% of the property. Not only can this trigger a tax issue, but the law also presumes that by titling the asset jointly, the separate property holder means to gift 50% of the property to the significant other. If a breakup occurs, the significant other is entitled to one-half the equity in the house. This issue is occurring more and more frequently in younger generations who are not getting married, and I see it occurring in older generations where a person is a widower or is widowed and they get into a new relationship. Do not create this mess.

Get advice from an attorney before you play with title in any respect. Even jointly titling your home, accounts, or other assets with a child causes tax issue. Be careful out there, our world is complicated.