Common Law Marriage Recognized as a Legal Marriage when you move out of state?

[skinnyglassesgi]

What is the name of your state (only U.S. law)? WEST VIRGINIA

I posted this in Family Law but didn't get a response, so I thought that I would try here. THANKS!

My husband and I moved from Texas to West Virginia last summer. While we were in Texas, we established an informal/common-law marriage under Texas law.

Under § 2.401 of the Texas Family Code, an informal marriage can be established either by declaration or by meeting a 3-prong test showing evidence of (1) an agreement to be married; (2) cohabitation in Texas; and (3) representation to others that the parties are married. As an example of this, you may have introduced you partner socially as "my husband," or you may have filed a joint income tax return.

My husband and I agreed to be married, lived together for over a year in Texas (and are still living together), and represented to others that we were married. We also signed a Declaration of Informal Marriage and had it notarized for my previous employer. This declaration states that we realize that this marriage is recognized as a legal marriage in all other U.S. states.

We moved to WV and asked a lawyer if we needed to do anything concerning our marriage since TX does not have state income taxes but WV does. We were told that according to Article IV, Section 1 of the United States Constitution (commonly known as the Full Faith and Credit Clause), states within the United States have to respect the “public acts, records, and judicial rulings” of all other states (i.e. we were told that that state of West Virginia recognizes that we were married in Texas, according to Texas laws, and that we are, in turn, married in the eyes of the state of West Virginia and that we could file our taxes as a married couple here in the state of West Virginia).

Well, we have been filing our federal taxes as married since we started living together and signed our Declaration of Informal Marriage in Texas. We started filing our WV taxes as married this year when we moved here.

The problem is now my company is doing a Dependent Eligibility Audit for health insurance. I have provided the company that is doing the audit with all necessary info, but my employer does not recognize common-law marriage. I have tried to explain to the company that is doing the audit and my company's HR rep that since I have moved from a state that recognizes informal marriage (TX) to another state (WV), that the new state must recognize our marriage as legal.

The problem is that the HR rep called the courthouse and was told that WV does not recognize common-law marriages. This is true...if the marriage originated in WV. It did not.

I have contacted a lawyer that is looking into this and the lawyer believes that I might be able to get an affirmation of marriage from a Family Court judge.

What should I do? Should I try to go to the courthouse here in WV to get a marriage license or is that illegal since I am already married?

Thanks so much!

[ecmst12]

What is the specific wording in the policy regarding the definition of a spouse?

I suspect you are right and your marriage as recognized by TX should be transferrable to any other state. But the policy wording may make a difference.

[TinkerBelleLuvr]

Did you file a joint tax return when in Texas?

[skinnyglassesgi]

Yes. We have filed a joint return since we filled out the Declaration of Informal Marriage in TX.

The policy states that common-law spouses are not covered.

When we left TX, we consulted with a lawyer and were told that we would be considered legally married in all other states.

When we came to WV, we went to the County Clerk's office to see if we needed to get married in WV. We were told no because we were already married since WV must recognize the law's of other states.

THANK YOU!

[skinnyglassesgi]

So, the question is, what do we do if the policy wording says that the spouse must be a legal, not common-law, spouse, but WV considers us legal because we moved from a state that recognizes common-law and WV will not issue us a marriage license because they already consider us married?

COMPLICATED!

[moburkes]

Originally Posted by skinnyglassesgi

So, the question is, what do we do if the policy wording says that the spouse must be a legal, not common-law, spouse, but WV considers us legal because we moved from a state that recognizes common-law and WV will not issue us a marriage license because they already consider us married?

COMPLICATED!

I'm not convinced that the insurance company has to recognize the common law marriage.

[skinnyglassesgi]

But if the insurance company won't recognize the marriage because they say that it isn't a legal marriage, and the state in which are living (West Virginia) says that they recognize the marriage as legal and will not issue us a marriage license to get married in WV because we were already married in Texas, what do I do???

THANKS!

[moburkes]

Originally Posted by skinnyglassesgi

But if the insurance company won't recognize the marriage because they say that it isn't a legal marriage, and the state in which are living (West Virginia) says that they recognize the marriage as legal and will not issue us a marriage license to get married in WV because we were already married in Texas, what do I do???

THANKS!

Try to get married and not tell them that you're already married? I don't know. I'm just pretty sure that they are not required to recognize your CL marriage. Don't ask me why I think that. I don't know. But, it seems to ring a bell. I'm an insurance agent and I know that insurance copmanies aren't required by law in any state, except CA, I think, to recognize same sez marriages, which is why I don't believe they are required to recognize yours. Maybe someone will have better information for you.

[ecmst12]

A marriage in one state MUST be recognized by all other states, EXCEPT FOR same sex marriages. That stupid defense of marriage act makes an exception to allow states to refuse to recognize same sex marriages performed in other states. But hetero marriages are absolutely transferrable from one state to the next. You are not common-law-married. You are just married, period. It doesn't matter through what means your marriage came to be recognized in TX, all that matters is that it WAS recognized and established in TX, so WV MUST accomodate you. I am 99% sure that your insurance company is wrong. Keep going up the chain to talk to people.

[moburkes]

Originally Posted by ecmst12

A marriage in one state MUST be recognized by all other states, EXCEPT FOR same sex marriages. That stupid defense of marriage act makes an exception to allow states to refuse to recognize same sex marriages performed in other states. But hetero marriages are absolutely transferrable from one state to the next. You are not common-law-married. You are just married, period. It doesn't matter through what means your marriage came to be recognized in TX, all that matters is that it WAS recognized and established in TX, so WV MUST accomodate you. I am 99% sure that your insurance company is wrong. Keep going up the chain to talk to people.

Thanks for responding. I thought I remembered the same sex issue, but didn't realize that it didn't also apply to common law. Appreciate it.

[You Are Guilty]

Originally Posted by ecmst12

A marriage in one state MUST be recognized by all other states, EXCEPT FOR same sex marriages. That stupid defense of marriage act makes an exception to allow states to refuse to recognize same sex marriages performed in other states. But hetero marriages are absolutely transferrable from one state to the next. You are not common-law-married. You are just married, period. It doesn't matter through what means your marriage came to be recognized in TX, all that matters is that it WAS recognized and established in TX, so WV MUST accomodate you. I am 99% sure that your insurance company is wrong. Keep going up the chain to talk to people.

Insurance companies are not states so there may still be an out for the private ins. co. do deny coverage based on the original C/L status. I'd be hesitant to offer an opinion until I've had a chance to look over the case law (I'm sure this issue has arisen before).

[skinnyglassesgi]

Thanks everyone for responding. The county attorney for the county clerk's office (they issue marriage licenses here) is trying to sort this all out!

From everything that I have read, because of the Full Faith and Credit clause, WV must recognize the marriage as a legal marriage, so the insurance company must note that we are LEGALLY married.

Now, if we were still living in Texas, and tried to obtain health insurance coverage there by stating that we were common-law married, they could deny us because they have a clause to deny common-law spouses.

But, since we are not common-law married in WV, just plain ole married, we should be good.

We shall see though!

[lkc15507]

Originally Posted by skinnyglassesgi

But if the insurance company won't recognize the marriage because they say that it isn't a legal marriage, and the state in which are living (West Virginia) says that they recognize the marriage as legal and will not issue us a marriage license to get married in WV because we were already married in Texas, what do I do???

THANKS!

I think other posters have alluded to what I am going to state quite crudely. I don't want to be crude, but sometimes it does get the point across. Federal statutes allow the creation and implementation of health plans. Depending on the specifics of the health plan formed, such plans are subject to federal and / or state regulations, yet the formation of those plans is voluntary on the behalf of the entity that forms it and allows participants to join in. There are very few federally mandated rules of coverage. I have no knowledge of any statues that require inclusion of any dependent much less statutes that define who is an eligible dependent. So, what I am getting at here is that, in my opinion, TX, WV, or any other state could recognize a participants marriage to a goat, totem pole, tree or human, but unless that marriage / dependent eligiblity requirement fits the definition of an eligible dependent according to the contractual health plan you are joining, too bad. As far as what to do, if you want to have the dependent covered, comply with the terms of the health plan by marrying (or whatever) in accordance to their terms. Maybe your lawyer will find specific information with regard to WV, your plan, and / or your specific situation that could make a difference, but I doubt it.

lkc15507

Edit, for anyone that may wish to pick, I'm leaving adopted children out of this discussion simply because it is a possible exception to my post, yet completely irrelevant to the specific situation.