Common Law Prenuptial Agreement

By Ekaete Bailey

marriage defined image by Christopher Walker from

Common law marriage and prenuptial agreements seem to clash in many ways. Because a common law marriage is often brought about over time and is decidedly more casual than a traditional marriage, prenuptial agreements seem to be too formal and pre-planned to correspond with a common law marriage. However, there is a way to insure your assets and protect your finances from a dissolved common law marriage.

Commom Law marriage

Common law marriage is a legal marriage entered into by a man and a woman who have legally resided in the same domicile for an extended period, and who consent to be married. Common law marriage does not require a ceremony or a license; however, it is a legal marriage, provided both spouses have verbally agreed that they are married. Proof of common law marriage includes filing joint taxes, using one surname, and telling friends and neighbors they are husband and wife. As of 2010, only nine states recognize common law marriage as legal. Some states require consummation of the marriage, but all require cohabitation as a requirement. According to The National Conference for State Legislatures, the length of time of cohabitation is not stipulated by law.

Prenuptial agreements

Prenuptial agreements are legal documents signed by both parties of a marriage or domestic partnership that explain the financial obligations and legal rights or each party involved. The agreement is entered into to prevent misunderstandings should the marriage or domestic partnership dissolve in the future. If a common law couple decides to get a divorce, a prenuptial agreement acts in the same way as it would for a traditional married couple.


Because common law marriages are not ceremonial and do not require a traditional marriage license, some parties may be interested in protecting their assets and generally outlining financial arrangements and contractual obligations should the common law marriage end in divorce. A prenuptial agreement can be drafted and signed prior to meeting all requirements for your particular state to acknowledge your common law marriage.


A prenuptial agreement for common law marriage is significant is that it not only outlines which spouse owns what asset, but it can also serve as household rules for you and your spouse. According to, prenups can even specify the distribution of pre-martial debt and the allocation for the marital residence.


If you live in state that recognizes common law marriage, it may be wise to create a domestic partnership agreement prior to engaging in cohabitation with your mate so that there is no confusion between the date of legal marriage and the effective date of the prenuptial agreement. Show your prenuptial agreement to a lawyer prior to signing it, and keep in mind that nothing related to child support, visitation or custody is legal in a prenuptial document.