[Oasfaa] Difficult verification

Tue Oct 8 13:48:04 CDT 2013

Hello,

Caryn asked me to research this issue and here is what our legal counsel sent to me.

Common Law Marriage in Oklahoma
The concept of common law marriage is perhaps one of the most misunderstood than any other area of family law. In its most basic form, common law marriage is a consensual non-ceremonial marriage between a man and a woman. It is a matrimonial bond that is formed by the consent of the parties as opposed to meeting all the state-imposed requirements of a ceremony and a license.
Common law marriage was well-established as a part of the English common law and ultimately adopted in Oklahoma by the Territorial Supreme Court in the case of Reaves v. Reaves, 1905 OK 32, 15 Okla. 240, 82 P. 490 (1905). The Reaves court held that Oklahoma law requiring a license, witnesses, and a certificate of marriage are simply directory and not mandatory.1 In short, “[A] common law marriage is formed when a ‘the minds of the parties meet in consent at the same time.’ 2
Many Oklahomans are under the misconception that by simply living together for a period of time, a couple has established a common law marriage. That misconception, however, is untrue. Oklahoma cases identify three elements which must be proven in order for a common law marriage to exist. Those elements include:

1.      An actual and mutual agreement between the spouses to be husband and wife;

2.      A permanent relationship;

3.      An exclusive relationship;

4.      Parties are legally capable of marriage (over 18, opposite sex);

5.      Cohabitation as husband and wife (there is a split of authority on this one); and

6.      Parties hold themselves out publicly as husband and wife (open mutual assumption of marital duties).
The person seeking to establish a finding of common law marriage has the burden of proving each of the elements outlined above by a clear and convincing standard.4
House Bill 2634 recently passed the Oklahoma House of Representatives. This measure would require that couples undergo a minimum of two hours of counseling before they can marry. In addition, this bill also abolishes the concept of common law marriage. With this legislation currently pending, the future of common law marriage remains uncertain within the State of Oklahoma. As for now, however, it stands firm as a part of our adoption of the English common law.
1 See Reeves v. Reeves, 1905 OK 32, 82 P.2d 490 (Okla. Terr. 1905) 442
2 Standefer v. Standefer, 2001 OK 37, 26 P.3d 104, quoting Reaves v. Reaves, 1905 OK 32, 82 P. 490
3 Bothwell v. Way, 1914 OK 571, 44 Okla. 555, 145 P. 350 (1914); Cavanaugh v. Cavanaugh, 1929 OK 101, 135 Okla. 204, 275 P. 315 (1929); Vann v. Vann, 1939 OK 495, 186 Okla. 42, 96 P.2d 76 (1939); Maxfield v. Maxfield, 1953 OK 390, 258 P.2d 915 (Okla. 1953).
4 Maxfield v. Maxfield, 1953 OK 390, 258 P.2d 915, 921 (Okla. 1953).

At the time this summary was written, House Bill 2634 was pending (2010) in the Oklahoma legislature.  That bill would have outlawed common law marriages after November 1, 2010.  However HB 2634 was not passed or codified into law, so they are technically still recognized in Oklahoma, but only because of case law, not statute.

SO, I would tell your team that CLM’s are still recognized, but that the burden of proof is on the individuals claiming CLM.  They must provide “clear and convincing” evidence to satisfy each of the requirements above.  This can be done with evidence such as joint income tax returns, joint financial accounts, jointly held assets, joint credit, medical records, insurance records, introductions and comments to third parties, hotel receipts, and any number of other sources.

Hope it helps.

Tracey Duke
Assoc. Dir., Special Programs
Office of Financial Aid Services
The University of Oklahoma

[The University of Oklahoma]

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From: oasfaa-bounces at lists.onenet.net [mailto:oasfaa-bounces at lists.onenet.net] On Behalf Of Tami Garcia
Sent: Wednesday, August 14, 2013 10:11 AM
To: myrna cross
Cc: Diana Lee; oasfaa at lists.onenet.net
Subject: Re: [Oasfaa] Difficult verification

I actually found information showing that it does from several "Federal" sources.

The NOLO website lists all the states which allow Common Law Marriage and Oklahoma is listed.  There are 16 of them, but some have restrictions like "Only if before 1/1/97".  Oklahoma does not have any restrictions on theirs.   The USCIS website (Homeland Security) also lists Oklahoma as a state that does recognize Common Law Marriage and defines what is required.  The Department of Labor also lists Oklahoma as a Common Law Marriage state in their Common Law Marriage Handbook.

So, I would count them as married and verify them that way.
________________________________
From: "myrna cross" <myrna.cross at wosc.edu<mailto:myrna.cross at wosc.edu>>
To: "Teresa Franklin" <Teresa.Franklin at twsweld.com<mailto:Teresa.Franklin at twsweld.com>>
Cc: "Diana Lee" <dlee at snu.edu<mailto:dlee at snu.edu>>, oasfaa at lists.onenet.net<mailto:oasfaa at lists.onenet.net>
Sent: Wednesday, August 14, 2013 9:49:19 AM
Subject: Re: [Oasfaa] Difficult verification
I think there is conflicting information and controversy about Common Law in Oklahoma.  I've looked for information several times and find documentation that says Oklahoma does recognize Common Law and other sources that says it doesn't.

Myrna Cross
Director, Financial Aid
Western Oklahoma State College
2801 N. Main
Altus, OK  73521
580-477-7712
580-477-7716 fax

On Tue, Aug 13, 2013 at 5:33 PM, Teresa Franklin <Teresa.Franklin at twsweld.com<mailto:Teresa.Franklin at twsweld.com>> wrote:
Oklahoma does not recognize common law anymore. I would say she just needs to amend the taxes.

Thanks,

From: oasfaa-bounces at lists.onenet.net<mailto:oasfaa-bounces at lists.onenet.net> [mailto:oasfaa-bounces at lists.onenet.net<mailto:oasfaa-bounces at lists.onenet.net>] On Behalf Of Financial Aid Director
Sent: Tuesday, August 13, 2013 5:21 PM
To: Diana Lee
Cc: oasfaa at lists.onenet.net<mailto:oasfaa at lists.onenet.net>
Subject: Re: [Oasfaa] Difficult verification

If they file together as married, then I would verify them as being married. I think that might be grounds for common law marriage in the State of OK.

On Tue, Aug 13, 2013 at 2:41 PM, Diana Lee <dlee at snu.edu<mailto:dlee at snu.edu>> wrote:
All,

How would you handle the following situation:

Student (27 yrs old) and has a baby, and she lives with the baby's daddy.  The problem is that they file their taxes together as married filing jointly.

Your thoughts?

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Diana Lee
Director Financial Assistance
NCAA Compliance
Southern Nazarene University
Phone:  405-491-6310<tel:405-491-6310>

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