Common Law Marriage

Common law marriage refers to the idea that if a man and woman have lived together and held themselves out to be man and wife for a certain period of time (usually several years), then the courts will view the parties as married and grant them the same benefits and responsibilities as couples who get married in a formal ceremony.

New Mexico Does Not Recognize Common Law Marriage with the Exception of Valid Out of State Marriages

Generally, New Mexico does not recognize common law marriage for its own residents. However, in certain circumstances, if a common law marriage was valid in an another state and then the parties move to New Mexico, then the New Mexico courts may recognize the marriage for purposes of granting a divorce and/or addressing child custody and child support under the full faith and credit clause.

Property and Debt Issues can be Challenging in Cohabitation Situations 

Questions about common law marriage often arise when parties have lived together for a long period of time and then they break up. In these cases, parties may have purchased property together or co-signed for loans for each other and they must determine how to divide that property and debt after the break up.

Except in certain circumstances, the New Mexico principal of community property and debt will not apply to that division of property and assets.  Generally, any debt or property held in a party’s sole name will remain their debt or property.

Many of these issues will be addressed under New Mexico contract law principles.  In long-term relationship, unraveling property and debt issues can be quite challenging.  It is necessary to document all claims to property or freedom from certain debts.

Child Custody and Child Support Addressed Like Any Other Child Custody Case

In contrast, the New Mexico rules regarding child custody and child support are generally the same whether or not parents marry. However, there are procedural differences between what needs to happen to establish child custody and child support in a divorce versus the breakup of non-married parents.

In the absence of marriage, there may be the need to establish parentage.  This does not necessarily mean there is a dispute.  However, in order to establish all the rights and obligations of parentage, a Petition to Establish Paternity, Custody and Support will likely need to be filed so that a Parenting Plan may be established.


Collins & Collins, P.C. is Here to Help

An experienced family law attorney can explain the various options available to parties who have lived together, but have not established a common law marriage that would be recognized in New Mexico.

These breakups can at times be surprisingly more difficult to address than a standard divorce. It is important to understand the process, the law and your rights in moving forward.


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