How Does Common-Law Marriage Affect FMLA Leave?

​Common-law marriages aren't so common anymore in the U.S., but employers should know their obligations to workers when these relationships are legally recognized.

"Common-law marriage is a judicially created doctrine in which persons can be considered married by the courts without holding a formal ceremony or obtaining a marriage license from the state," explained Benjamin Dudek, an attorney with Fisher Phillips in Columbia, S.C. Typically, the couple have lived together for a certain period of time and present themselves to the public as spouses.

As with all complex employment issues faced by multistate businesses, employers should consider common-law marriages and have a well-thought-out plan that is enforced consistently, said Nonnie Shivers, an attorney with Ogletree Deakins in Phoenix.

South Carolina was the latest state to abolish common-law marriage in July. The state supreme court's ruling abolishing common-law marriages reaches beyond state lines, and employers should understand the ruling's implications for benefit plans and leaves of absence.

"Our workforce is transient," said Suzanne G. Odom and Ellison F. McCoy, attorneys with Jackson Lewis in Greenville, S.C. "Employees residing in South Carolina often move across state lines for work and personal reasons, and many companies with principal offices outside South Carolina choose to open locations in South Carolina," they said.

Which States Allow Common-Law Marriages?

Only a few states, including Colorado, Iowa, Kansas, Montana, Rhode Island, Texas and Utah, and Washington, D.C., still recognize common-law marriage.  

New Hampshire recognizes such marriages for inheritance purposes only. In Oklahoma, however, state agencies, courts and legal scholars disagree as to whether common-law marriages were abolished or are still recognized.

Other states, such as Alabama, Georgia, Ohio, Pennsylvania and South Carolina, abolished common-law marriages but will still recognize those entered into before the date they were barred. For instance, Pennsylvania will recognize common-law marriages entered into before Jan. 1, 2005, and the South Carolina Supreme Court said it will recognize common-law marriages formed before July 24, 2019.

State law varies as to the specific elements required to create a common-law marriage. "The 'when' and the 'where' are absolutely crucial," Shivers noted. The couple typically have to be of marriageable age, have the capacity to consent, intend to and actually consent to be married, and hold the relationship out to others as a marriage.

As a general rule, the validity of a common-law marriage is determined by the applicable state or local law that has the most significant relationship to the parties. 

Employers would likely look to the law where the couple lived when they claim to have been married, Shivers said.

Employers should note that, even in states where such marriages are barred, a common-law marriage from another state may still be recognized unless the second state has a strong public policy against them and refuses to recognize them, she added.

Leave and Benefits Rights

Under the Family and Medical Leave Act (FMLA), employees can take leave to care for a spouse who has a serious health condition. The definition of "spouse" under the regulations specifically includes a common-law spouse, so long as the marriage was validly entered into in a state that permits such marriages, regardless of the state in which the employee currently resides.

[SHRM members-only toolkit: Managing Family and Medical Leave]

Although most states have abolished common-law marriage, employers still have to consider them when employees want to take leave to care for a spouse, Dudek said. This is because an employee who formed a common-law marriage prior to a state's abolition of such unions would still be considered married and would be eligible to take spousal leave under the FMLA.

With respect to health care and other benefit plans, the plan determines who is an eligible spouse, he noted. Most plans state that a spouse is defined by state law, and they do not make exceptions for common-law spouses.

Because a common-law marriage is largely based on the couple's consent and intent, some employers request documentation from employees before allowing their common-law spouses to participate in benefits, such as a signed affidavit that highlights all the legal elements necessary to show a common-law marriage exists, Shivers said.

Under the FMLA, employers can require workers who take leave to care for a relative to provide reasonable documentation to verify a family relationship.