Common Law Marriage in Indiana: What You Need to Know
Understand how Indiana handles non-marital partnerships, including legal recognition, rights, and practical implications for couples.
Many couples live together for years, sharing finances and raising children, considering themselves committed without formalizing their union through marriage. This often raises questions about legal rights, particularly when relationships end or a partner dies.
In Indiana, the status of common law marriage frequently causes confusion. Understanding how the state treats these relationships is crucial for protecting personal interests and avoiding legal difficulties.
Legal Status in Indiana
Indiana law is clear: new common law marriages cannot be formed within the state. This has been the case since January 1, 1958. While Indiana historically recognized unions formed by mutual agreement and public representation without a formal ceremony, the state legislature abolished this practice.
Indiana Code section 31-11-8-5 states that a common law marriage entered into after January 1, 1958, is void.1Indiana General Assembly. IC 31-11-8-5: Common Law Marriages Entered Into After January 1, 1958, Void Couples living together in Indiana after this date cannot gain marital status simply through cohabitation and presenting themselves as married, regardless of the relationship’s duration or commitment level.
To be legally married in Indiana today, couples must follow specific procedures. This includes obtaining a marriage license from the appropriate county clerk, meeting age and identification requirements, and having the marriage solemnized by an authorized individual, as outlined in state law. Without these steps, a relationship formed within Indiana does not constitute a legal marriage.
Recognition from Other States
Although Indiana prohibits the creation of new common law marriages within its borders, it generally recognizes valid marriages formed in other jurisdictions. This practice is based on the legal principle of comity, where states respect each other’s laws, and is supported by the Full Faith and Credit Clause of the U.S. Constitution.
If a couple validly entered into a common law marriage in a state that permits such unions (like Colorado, Iowa, or Texas) and met all that state’s legal requirements while residing there, Indiana courts are likely to recognize that marriage upon the couple’s move to Indiana. The crucial factor is whether the marriage was validly established according to the laws of the place where it originated.
The party claiming the existence of an out-of-state common law marriage bears the burden of proof. They must demonstrate that the couple met the specific criteria required by the originating state’s law, which typically include a present agreement to be married, cohabitation, and holding themselves out publicly as spouses within that jurisdiction. Indiana courts evaluate this evidence based on the laws of the state where the common law marriage was allegedly formed.
Property Division and Financial Rights
Because Indiana does not recognize common law marriages established within the state after 1958, unmarried cohabiting couples do not automatically receive the property rights afforded to married couples upon separation. State laws governing the division of marital property in a divorce do not apply. Unmarried partners generally have no automatic claim to property titled solely in their partner’s name, irrespective of the relationship’s length or contributions made.
When an unmarried couple separates, asset division depends primarily on legal ownership. Property held solely in one partner’s name typically remains theirs. For jointly owned property, like real estate titled as “tenants in common,” each partner usually owns a distinct share. If they cannot agree on division, one partner may file a partition action, asking a court to divide the property or order its sale and distribute the proceeds.
Without a formal marriage, individuals might pursue financial recovery through equitable claims like implied contract or unjust enrichment, though these can be challenging to prove. An implied contract claim suggests an implicit agreement for repayment for benefits conferred, while unjust enrichment argues one partner unfairly benefited at the other’s expense. Success often requires detailed evidence of financial contributions and shared understandings.
To avoid disputes, unmarried couples can create a cohabitation agreement. This written contract defines rights and responsibilities regarding finances, assets, and debts, specifying how property should be divided upon separation. Governed by contract law, these agreements offer clarity outside the marital framework.
Parental Rights and Responsibilities
For children born to unmarried parents in Indiana, establishing legal parentage for the father is a key step. The mother automatically has sole legal and physical custody at birth under state law (Indiana Code section 31-14-13-1).2Indiana General Assembly. IC 31-14-13-1: Custody of Child Born Outside Marriage The father has no legal rights or responsibilities regarding custody or parenting time until paternity is formally established.
Paternity can be established voluntarily through a Paternity Affidavit, a legal document signed by both parents acknowledging the father’s biological relationship, often completed at the hospital or later at a health department (Indiana Code section 16-37-2-2.1).3Indiana General Assembly. IC 16-37-2-2.1: Paternity Affidavit Alternatively, if parentage is disputed or no affidavit is signed, either parent or the state can file a paternity action in court (Indiana Code Title 31, Article 14), which may involve genetic testing.4Indiana General Assembly. IC Title 31, Article 14: Family Law: Establishment of Paternity
Once paternity is legally established, either by affidavit or court order, determinations about custody, parenting time, and child support proceed similarly to divorce cases. Indiana law requires all custody decisions to be based on the “best interests of the child” (Indiana Code section 31-17-2-8), considering factors like the child’s age, parental wishes, the child’s adjustment, and the mental and physical health of all involved.5Indiana General Assembly. IC 31-17-2-8: Best Interests of Child Determination There is no legal presumption favoring either parent.
The father can then petition the court for specific orders regarding legal custody, physical custody, and parenting time. Courts often favor arrangements involving both parents, guided by the Indiana Parenting Time Guidelines. Both parents share a legal obligation for financial support, calculated using the Indiana Child Support Rules and Guidelines based on combined parental income.
Evidentiary Considerations
When seeking legal recognition in Indiana for a common law marriage formed elsewhere, the focus is on evidence. The party asserting the marriage must prove it was validly established under the laws of the originating state before the couple moved to Indiana.
Proving an out-of-state common law marriage typically requires clear and convincing evidence demonstrating the couple met that state’s specific criteria, usually involving a present agreement to be married, cohabitation as spouses, and public representation as a married couple within that jurisdiction while residing there.
Evidence can include testimony from the partners and corroborating accounts from friends, family, or community members in the originating state. Documentary proof is often crucial, such as joint bank accounts, leases or deeds, shared insurance policies, joint tax returns (if applicable), mail addressed to the couple as married, or birth certificates listing both as parents, all dating from the relevant period in the originating state. An Indiana court will analyze this evidence against the specific legal standards of the state where the marriage allegedly began.
Termination of the Relationship
How a relationship ends legally in Indiana depends on whether a recognized marriage exists. For couples cohabiting in Indiana after January 1, 1958, without a marriage license, no legal marriage exists under state law (Indiana Code section 31-11-8-5). Their separation does not require formal divorce proceedings. The relationship ends upon separation, and issues like property division or child custody must be addressed through separate legal actions (e.g., partition suits, paternity actions) rather than divorce court.
If a couple’s marriage is legally recognized by Indiana – either through formal marriage or a valid common law marriage established in another state – its termination requires a formal dissolution of marriage (divorce) process under Indiana Code Title 31, Article 15.6Indiana General Assembly. IC Title 31, Article 15: Family Law: Dissolution of Marriage and Legal Separation The couple must file a petition for dissolution, meet residency requirements, and address issues like property division, potential spousal maintenance, and child custody and support through the court system. The grounds are typically the irretrievable breakdown of the marriage.
Consulting Legal Counsel
Navigating the end of a long-term relationship, especially when common law marriage status is uncertain or involves recognition of an out-of-state union, presents significant legal complexities. Whether a formal divorce is required or separate actions for property and children are necessary depends entirely on whether Indiana law recognizes the relationship as a marriage.
Given the nuances surrounding property rights for unmarried cohabitants, the specific requirements for proving an out-of-state common law marriage, and the distinct procedures for establishing parental rights outside of marriage, seeking advice from an attorney experienced in Indiana family law is highly recommended. Legal counsel can clarify individual rights and obligations, explain the applicable legal standards, and guide individuals through the appropriate court procedures, whether that involves divorce, partition actions, paternity establishment, or negotiating agreements.
