Nevada does not recognize common law marriages, regardless of how long a couple has lived together or their future intentions. For a legal marriage to occur, the couple must obtain a marriage license and have a ceremony, as the state only recognizes formal marriages for the purposes of divorce and community property.
More specifically, Nevada law will consider you an unmarried couple if you lack:
- a marriage license issued by the state, and
- an official solemnization ceremony (wedding), memorialized by a marriage certificate by the state
Therefore, if you break up with your long-term partner in Nevada, the property division falls under the jurisdiction of civil court – not family court. The controlling law will also be contract and palimony principles – not community property statutes.1
This is true whether you are in a same-sex couple or opposite-sex couple.
What is common law marriage?
A common law marriage is when the state recognizes you and your partner as legally married even though you never had a formal wedding. The few states that still recognize common law marriage each have different definitions for what qualifies.
In New Hampshire, for instance, the state will consider you legally married if, for three years, you and your partner
- had a common residence and
- held yourselves out as married.2
In Utah, there is no minimum cohabitation period required at all.3
If you are in a common-law marriage state – and you and your common-law spouse break up – you can formally petition for divorce just as any married couple could. Then, family court (and not civil court) would have jurisdiction over your split.
Plus the judge would rely on the state’s marital property statutes (and not general contract principles) to decide who gets which assets.
What is the putative spouse doctrine?
Under the putative spouse doctrine, Nevada courts will grant the legal protections of marriage to an unmarried couple if the two people:
- entered into a marriage ceremony in good faith; and
- did not know that there was an impediment to their marriage.
So if you get a marriage license and have a wedding – and you genuinely did not realize that there was a legal snafu preventing you from being lawfully married – the court will still use marital property laws to divide your assets in the event you split up.
Example: Anna and Ben decide to divorce. Ben’s attorney discovers that Anna’s prior marriage was never legally dissolved because – unbeknownst to Anna – her lawyer failed to file the proper paperwork.
Ben argues that since he and Anna were not legally married (because Anna was never legally divorced), Anna should not benefit from Nevada’s community property state protections. However, since Anna and Ben believed in good faith that they were legally married, the putative spouse doctrine kicks in.
Therefore, community property law would control the division of assets that Ben and Anna accrued during their putative marriage, including real estate. (Any property they held separately prior to the putative marriage would remain separate property.)
Note that the putative spouse doctrine does not allow courts to award spousal support (“alimony” financial support) absent a showing of fraud.4
Couples who do not wish to marry can consider alternatives like domestic partnerships or cohabitation agreements.
Related Topics
- Annulments
- Child custody
- Child support
- Cohabitation agreements and civil unions
- Domestic partnerships/domestic partners
- Premarital agreements
