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How Does Common-Law Marriage Affect Child Support?

— December 4, 2020

You should seek the advice of a family law attorney for answers to your questions about marriages under the common law and child support.

Although only a handful of states continue to allow common-law marriage, its effect on the child support obligation of parents is something you may need to discuss with a family law attorney regardless of where you live. As a general rule, if you lived together with someone and held yourselves out as a married couple (there are various ways to proclaim yourself a married couple) in Colorado, Iowa, Kansas, Montana, New Hampshire, Texas, Utah or the District of Columbia, you were part of a common-law marriage.

Let’s take a look at the effect your marital status may have on your child support obligation.

Common-law marriage has a long history in the U.S.

A couple’s ability to marry simply by living together dates back to colonial times in America. States continued to recognize the practice until laws and court decisions starting in the 19th century began to limit the practice. As recently as this year, the highest court in South Carolina issued a decision ending the creation of new common-law marriages in that state.

Common-law marriages continue to exist in South Carolina and other states through the Fourteenth Amendment to the U.S. Constitution. The Constitution compels all states to give full faith and credit to a marriage as long as it was validly entered into under the laws of the state where the couple resided. Couples in a valid marriage, whether created under the common law or statutory law, must file for a divorce to end it.

A parent’s obligation to pay child support

Parents, regardless of marital status, share an obligation to provide financial support for their children. Child support usually refers to payments made to the parent with whom a child resides by the noncustodial parent. The purpose of the payments is to meet a child’s basic needs, including:

  • Food
  • Shelter
  • Clothing
  • Health care
  • Education

As a general rule, a parent’s support obligation only extends to biological or adopted children, but you should speak with a lawyer in your state to find out its laws regarding stepchildren. The marital status of the parents has no bearing on the legal obligation imposed on parents to pay for the support of their children.

Children wearing masks. Image via (CCA-BY-0.0).

Laws in each state set the method for calculating child support. Some states use a standardized table to calculate the support needs of a child. The amount payable by a noncustodial parent is calculated based upon the combined incomes of both parents and the percentage of the noncustodial parent’s contribution to the monthly income. For example, assume a state’s standardized chart shows that it costs $1,200 to support one child. If the combined monthly income of the parents is $5,000 with $3,000 attributed to the noncustodial parent, that parent’s support obligation would be 60% of the amount needed to support the child or $720 a month.

Other states calculate child support based upon a set percentage of a parent’s income. For instance, the law might specify 19% of a parent’s monthly income as the support obligation when there is only one child with a higher percentage for additional children. 

Child support obligation and marriage

Marriage, whether through a state’s statutory scheme or through a common-law relationship, greatly reduces disputes over the legitimacy of children. According to the provisions of the Uniform Parentage Act, a version of which has been adopted by every state, the state presumes the legitimacy of a child born to a married couple.

It is much easier for the mother of a child to successfully petition a court for child support when she and the child’s father were married when the child was born. If the father wishes to challenge paternity, he bears the burden of proof because of the presumption of legitimacy accompanying married couples.

Seek legal help with support and common-law marriage

Because the laws differ from one state to another, you should seek the advice of a family law attorney for answers to your questions about marriages under the common law and child support. When a state changes its law pertaining to the formation of common-law marriages, as was recently done in South Carolina, it is important to find out the impact it has on your marriage.

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