Q. I do a lot of work on my genealogy, and feel it is just as important to keep the records of my living ancestors current as well as my deceased ancestors. I frequently encounter relatives living with and having children with a “significant other.” What is the difference between having children in a common law marriage versus living with someone? What are the legal responsibilities to these children when one gets tired of the relationship and up and moves out?
A. Common law marriage is a process by which people essentially acted as a married couple, and after a while, the state recognized them as being legally married. There was never a checklist of requirements to meet before they were legally married through a common-law marriage. It just happened after a while. The main focus was on the parties’ conduct and whether their conduct constituted holding themselves out as a married couple. If so, their marriage would be recognized by the state. Children born to them would be born into a marriage and entitled to all the rights under Idaho law, including intestacy, testacy and probate. The couple would be able to file federal taxes and claim married filing jointly status. Also, the couple’s property would be subject to an equitable division in the event of divorce.
However, Idaho does not recognize common-law marriages formed after Jan. 1, 1996. However, if a couple holds themselves out as married in a state that does allow common law marriage, Idaho would likely have to recognize the marriage. Otherwise, unwed people living together in Idaho who have children together are just people living together who have children together.
Historically (think feudal England or “Game of Thrones”), being born out of wedlock had much more significance and usually resulted in a loss of inheritance. In today’s world, being born out of wedlock is more common and less significant. For example, a child born out of wedlock is still entitled to an inheritance under Idaho probate laws. Also, being born out of wedlock would not prevent a child from filing a wrongful death lawsuit if his/her parent died in an accident.
The rights of an unmarried father are trickier to identify than for a mother. Generally, an unmarried father has few enforceable rights until a court recognizes those rights, usually through a paternity/custody proceeding. In that type of proceeding, a judge will determine paternity and establish a parenting plan and an obligation to pay child support. Absent an order from a court, an unmarried father could simply pack up and leave without any recognized and/or enforceable legal obligation to the child. The mother could start a paternity/custody proceeding in the future.
Dillon Erikson is an attorney practicing in Idaho Falls. This column is provided by the 7th District Bar Association as a public service. Submit questions to “It’s the Law,” P.O. Box 50130, Idaho Falls, ID 83405, or by email to [email protected] This column is for general information. Readers with specific legal questions should consult an attorney. A lawyer referral service is provided by calling the Idaho State Bar Association in Boise at 208-334-4500.