New Mexico Common Law Marriage

What is Common Law Marriage in New Mexico?

Common-law marriage is a union between two persons who share a residence and present themselves to the public as a married couple, without being legally wedded. Although the union is legally recognized, common-law married persons do not receive a marriage license or solemnize their wedding according to state law. This type of union is only recognized in a few jurisdictions, including Iowa, Utah, Texas, South Carolina, Kansas, Montana, and Colorado.

Many couples use this method to avoid the financial costs and other requirements required of a conventional marriage. In most places, common-law married couples can access the same rights and benefits as traditionally married couples. Accessible rights include:

Spousal support
Tax exemptions or deductions
Child custody
Social security
Making emergency medical decisions on a partner’s behalf
Hospital visitation rights
The right to owned property

While the benefits listed above are accessible, interested persons should note that common-law marriages have certain disadvantages. For instance, this type of union is difficult to prove. Couples may have a hard time enjoying any of the listed rights because proving the existence of a common-law marriage is considerably tedious.

Although different from a conventional marriage, many states still require that interested couples meet certain conditions. In most states where common-law marriages are recognized, parties should be of legal age, live together for a long time, and have the capacity to marry.

Marriage In New Mexico

In 2018, New Mexico had a marriage rate of 16.4 marriages per 1,000 residents and a divorce rate of 6.6 per 1,000 couples. In addition, a 2019 survey revealed that 37% of New Mexico males were married, versus 31% of females. The survey also showed that 12% of females in the same age range were divorced, compared to 9% of males.

Does New Mexico Recognize Common-Law Marriages?

New Mexico does not recognize common-law marriages established within the state as there are no supporting laws. However, the state recognizes common-law marriages created in other states where this type of union is allowed - in compliance with the US constitution’s Full Faith and Credit Clause. According to state law, only traditional marriages are recognized. New Mexico does not offer alternatives such as domestic partnerships to couples seeking legal recognition of their unions. However, state residents not willing to marry may enter a cohabitation agreement.

What is a Cohabitation Agreement?

A cohabitation agreement is a legal agreement between two unmarried persons who live together and share similar responsibilities. This agreement binds the two spouses by specifying each person’s responsibilities and obligations throughout the relationship’s duration. Couples who want to live together without getting married may establish a cohabitation agreement to avoid disputes and or legal contentions that may arise if the relationship ends. A cohabitation agreement should contain the following details:

Each property existing before the relationship started and the corresponding type of ownership
Determination of ownership for all properties newly acquired during the relationship
A formula for sharing all responsibilities, including expenses, income, and debt
Specifics on how to resolve disputes that may arise
How to distribute all assets and liabilities if parties end the relationship
Buyout provisions allowing one partner to purchase property owned by the other partner
Management of bank accounts, insurance policies, investment accounts, credit cards, and other related financial specifics
Consequences for violating the agreement

What Are the Requirements for a Common Law Marriage in New Mexico?

New Mexico has no requirements for creating a common-law marriage in the state. Legal unions in the state comprise traditional marriages, unions governed by cohabitation agreements, and common-law marriages established in other states. The requirements for a common-law marriage depend on the supporting law in the state where the marriage was established. Although these requirements differ between states, they usually include the following:

Each party should be at least 18 years old
Both parties should not be related by blood
Both parties must have the mental capacity to understand what a marriage is
Both parties must consent to the union
Neither party should be married or in any other type of recognized union with another person
Both parties live together as husband and wife
Both parties present themselves as a married couple to the public

How Many Years Do You Have to Live Together for Common Law Marriage in New Mexico?

Since New Mexico does not recognize common-law marriages, the state has no cohabitation requirement to establish one. Common-law marriages recognized in the state must have been created in a state that has supporting laws. Therefore, if a couple meets the cohabitation requirement in the state where the union was established, the marriage would be considered valid in New Mexico.

What Does It Mean to Be Legally Free to Marry in New Mexico?

A person who is legally free to marry in New Mexico has met all the state’s requirements for marriage and is eligible to receive a marriage license. According to New Mexico law, the following conditions apply:

Each person must be at least 18 years old. If younger than 18 but at least 16 years old, the person must provide a certified birth certificate from the jurisdiction they were born in and submit written consent from both parents listed on the birth certificate. If one parent is deceased, the party must provide a certified copy of the death certificate. Persons younger than 16 require a district court order
Both parties must consent to the marriage
The union does not constitute an incestuous marriage
Parties must not be married to other persons

What is an Informal Marriage in New Mexico?

An informal marriage is the same as a common-law marriage. The term is used to describe the same type of union established in Texas, according to Section 2.401 of the Texas Family Code.

How Do You Prove Common-Law Marriage in New Mexico?

Persons establishing a common-law marriage are advised to obtain official documentation of the union in case one party needs to prove its existence. Some states allow parties to sign and notarize an affidavit as evidence of the union, although applicable documentation may differ between states. For instance, Michigan requires common-law married couples relocating to the state to obtain a power of attorney and medical power of attorney, which allow parties to make legal and medical decisions on each other’s behalf. In Texas, parties may sign a Declaration of Informal Marriage.

Proving a common-law marriage in New Mexico may be difficult if these documents are not available. However, persons may present other documents obtained in the course of the union, which show that the common-law marriage did exist. Parties may submit documents that support the following:

The couple operated a joint bank account
Both parties introduced each other to the public as their spouse or publicly used related terms to refer to each other
The parties signed applications as a married couple
Both persons wore appropriate rings on their ring fingers
Both parties used the same last name

While there is no comprehensive list of documents that prove the existence of a common-law marriage, all similar documents that establish a union between both parties may be presented.

Third-party websites provide an alternative to obtaining public vital records. These non-governmental platforms come with intuitive search tools that help simplify the process of accessing single or multiple records. However, record availability on third-party sites tends to vary because they’re independent of government sources. To obtain public marriage records, requesters may need to provide:

The full name of both spouses ((include first, middle, and last names)
The date the marriage occurred (month, date and year)
The location where the marriage occurred (city and county)

How Do You Prove Common-Law Marriage in New Mexico After Death?

Proving a common-law marriage after a partner’s death requires supporting documents. The surviving partner may provide affidavits, notarized statements, or declarations to buttress their claim that the union existed. Documents that establish the fact of shared life and common responsibilities may also support the claim. Where some or none of these documents are available, courts may consider testimonies from relatives who were aware of the common-law marriage.

Do Common-Law Marriages Require a Divorce?

Common-law marriages require a divorce in New Mexico. Although couples cannot establish a common-law marriage in the state, partners may terminate the relationship. Common-law married partners who relocated from states where this type of marriage is recognized can file for divorce as the only official method to dissolve the union in New Mexico.

New Mexico has a residency requirement for a divorce. According to state law, at least one party should have resided in New Mexico for at least six months and should have a “domicile” in the state. To meet the qualifications for a domicile in New Mexico, the following must apply:

The person is physically present in New Mexico and has established residence in the state
The person has a current intention in good faith to permanently or indefinitely reside in New Mexico

Persons in the US military who are stationed in New Mexico for at least six months prior to the divorce filing also qualify. Persons who were stationed in the state for at least six months before the filing may also qualify even if they are no longer stationed in New Mexico. However, such persons must prove a current intention in good faith to return to the state to reside permanently or indefinitely. All divorce proceedings should begin with a petition in the district court of the county where one party resides.

Does a Common-Law Wife Have Rights in New Mexico?

Common-law wives have rights in New Mexico if the state validates the union. In a divorce, common-law wives may enjoy the same rights accessible to traditionally married wives. While access to these rights might depend on the circumstances of each divorce, common-law wives may enjoy property rights and other similar spousal benefits.

Can a Common-Law Wife Collect Social Security in New Mexico?

New Mexico common-law wives can collect social security. The Social Security Administration offers the same rights to common-law and traditional couples as long as the union was established in a state with supporting laws. Members of the public should note that only persons who are at least 61 years and 9 months old are eligible.

Interested parties may collect social security by applying online or visiting a local social security office. Eligible persons may also apply by phone at (800) 772-1213 or TTY at (800) 325-0778. Applicants must submit a completed Statement of Marital Relationship Form along with a Statement Regarding Marriage completed by a blood relative. Required information includes the following:

The names of both common-law married partners
The month and year the couple began cohabitating
The length of time the partners lived together
The town or city and state where they established the union
Residential information, including city or town and state
Any periods of separation since their cohabitation began
Names, dates, and places of birth for each child born of the relationship
List of close relatives who were aware of the union

Applicants may also be required to submit one or more of the following documents:

A birth certificate or other proof of birth
Proof of US citizenship
Other document showing legal status for persons not born in the US
W-2 forms, self-employment tax returns for the previous year, or both
Final divorce decree, where applicable

Are Common-Law Wives Entitled to Half in New Mexico?

Common-law wives may be entitled to half in New Mexico. Because New Mexico is a community property state, the courts assume that both partners equally own all property acquired during the relationship. This means that everything obtained by either partner from the beginning of the union to the day one party filed a divorce petition, may be shared 50-50. Other items that don’t qualify as community property are described as separate property. These include:

All acquisitions before the marriage
Gifts received by one party from someone who is not the other party
Inheritance received during the union
All acquisitions after filing the divorce petition

Although community property should be equally shared, courts may not always divide property in half. In many cases, a court may consider several factors, including each party’s economic status, whether the couple had any children and debt.

How Do You Get A Common-Law Marriage Affidavit in New Mexico?

Couples who need proof of a common-law marriage may obtain affidavits from the state where the union was established. Since New Mexico does not recognize common-law marriages, these affidavits are unavailable in the state.

When Did Common-Law Marriage End in New Mexico?

New Mexico is one of a few US states that never recognized common-law marriages. The only legal unions recognized in the state are traditional marriages and common-law marriages established in other states with supporting laws.

What is Considered Common-Law Marriage in New Mexico?

A common-law marriage in New Mexico is defined according to the laws in the state where the marriage was created. Apart from these, New Mexico only offers conventional marriage unions. Common-law marriages, domestic partnerships, and civil unions are not recognized in the state.

Does the Federal Government Recognize New Mexico Common Law Marriages?

The federal government does not consider New Mexico common-law marriages as valid. Only unions created in states with supporting laws are recognized by the federal government. As of 2021, the federal government’s recognition of this type of union is restricted to Montana, Kansas, Colorado, Rhode Island, South Carolina, New Hampshire, Utah, and Texas. Some states enjoy partial recognition for common-law marriages created before specific dates. Partially recognized states include Alabama, Georgia, Idaho, Pennsylvania, Oklahoma, and Ohio.