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My husband (common law) and I moved to SC 7 1/2 months ago. We've lived as spouses for five years here & Ohio.

 

We've found ourselves giving serious thought to bankruptcy, but want to know if we can do it as a joint petition since we're not legally married or if being common law is enough.

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If you have a common law marriage then you do have a real marriage, just like one that you would have with a marriage license and ceremony. The problem you have is that only a few states recognize the formation of a common law marriage and Ohio is not one of them. Ohio stopped recognizing common law marriages in 1991 for anyone not yet married.

 

So you did not have a common law marriage at the time you moved to South Carolina. As it happens, South Carolina is one of the few states that does recognize common law marriages. But you have been there only 7½ months. You might not have done a whole lot yet to prove a common law marriage. But if you have formed a common law marriage in SC, you could file the joint bankruptcy petition. You'd best discuss this issue with a bankruptcy attorney in SC.

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we're not legally married

 

What makes you think having a common law marriage means you're not "legally married"?

 

The statement in the prior response that "Ohio stopped recognizing common law marriages in 1991" isn't exactly correct.  Ohio stopped allowing the formation of common law marriages within its borders as of October 1991.  However, Ohio, like every other state, continues to "recognize" common law marriages that were formed in those states that allow them to be formed.

 

It is correct, however, that, if you've only lived in SC for 7 1/2 months and only lived together in OH for five years, you cannot have formed a common law marriage before you moved.  Did you form a common law marriage in SC sometime in the last 7 1/2 months?  Obviously, I have no way of knowing.  You certainly could file a bankruptcy petition and claim to be married, and it's possible that no one will challenge that claim.  But if someone does challenge it, you'll need to be prepared to present evidence of your alleged common law marriage, so that's something you'll want to discuss with your bankruptcy attorney during your consultation.

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Hi nanakimmy,

 

Welcome to the community and thank you for your question. As other users have mentioned, some states recognize common law marriage, and while South Carolina is included in this list, Ohio is not. But, because you have only lived in South Carolina for 7.5 months, a court may not count the previous years that you and your husband lived as spouses in Ohio. You can learn more about common law marriage from these resources in our Learn About the Law section:

Regarding the implications of your common law marriage on filing your bankruptcy petition, other users have correctly stated that this is something you should discuss with your bankruptcy attorney. If you need assistance locating an experienced bankruptcy attorney in your area, you can use our Lawyer Directory.

 

Best of luck with your case and let us know if you have additional questions.

The FindLaw.com Team

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