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South Dakota Common Law Marriage

What is Common-Law Marriage in South Dakota?

Also known as an informal marriage, a common-law marriage is a union between two people who live together, have shared marital responsibilities, and describe themselves as married without a formal wedding ceremony. Common-law married couples-although legally recognized-do not obtain a marriage license from the county Register of Deeds or solemnize their union as required by SDCL 25-1-1. Common-law marriages are legal in a few US jurisdictions, including Utah, South Carolina, Texas, Colorado, Montana, Kansas, and the District of Columbia.

A common-law marriage is a legal way for a couple to establish a union without performing a ceremony or incurring related financial costs. Many states provide common-law married couples with the same rights accessible to couples in traditional marriages. Some of these rights include:

  • Child custody
  • Tax deductions or exemptions
  • Hospital visitation rights
  • The right to make medical decisions on behalf of a partner
  • Healthcare benefits
  • Prison visitation rights
  • Alimony
  • Property division
  • Inheritance

Regardless of these rights, common-law marriages have some disadvantages not present with traditional marriages. These include:

  • Difficulty in establishing proof: It may be hard for a common-law couple to prove that the union existed. This proof may be necessary where there is a separation, divorce, or where one spouse dies. If there are no legal documents confirming the union, rights and entitlements normally available to common-law couples may be difficult to access.
  • Varying requirements: Common-law marriage requirements are mostly similar in states that recognize this type of union. However, establishing a common-law marriage upon relocation may be difficult if requirements differ between states. A common-law marriage may not be recognized in the new location until the couple meets additional conditions where applicable.
  • Recognition outside the United States: Common-law marriages may be invalid outside the US. While traditional marriages may enjoy rights and entitlements in new jurisdictions, a common-law married couple may not qualify until they formalize their union as provided by the law in the new jurisdiction.

Marriage In South Dakota

In 2020, South Dakota had a marriage rate of 6 marriages per 1,000 persons and a divorce rate of 2.5 divorces per 1,000 residents. According to a 2019 survey of residents aged 15 or older, 52% of males were married, higher than the 50% reported for females. Figures also showed that 9% of males in the same age demographic were divorced, lower than the 12% of divorced females.

Does South Dakota Recognize Common-Law Marriage?

South Dakota does not recognize common-law marriages. The state abolished common-law marriages in 1959. Resident couples may only obtain legal recognition of their unions by requesting a marriage license from the Register of Deeds in their respective counties of residence. Other arrangements, such as domestic partnerships, cohabitation agreements, and other quasi-marital relationships, are also invalid according to South Dakota law. However, South Dakota recognizes all common-law marriages created in jurisdictions with supporting laws, in compliance with the US constitution’s Full Faith and Credit Clause.

What Are the Requirements for a Common-Law Marriage in South Dakota?

South Dakota has no requirements for establishing a common-law marriage since the state has no supporting laws. Regardless, South Dakota validates common-law marriages created in other jurisdictions according to requirements in these places. Although states may have different requirements, the following must be true of valid common-law marriages in most states:

  • Both partners are unrelated in a way that would void the marriage according to state law
  • Each partner consents to the union
  • Both parties live together
  • Each party is considered an adult in the out-of-state jurisdiction. Some states may permit younger persons to enter a common-law marriage if they provide parental consent or a court order. In some instances, especially for persons younger than 16, state law may require both
  • Both parties are single and not married or in a similar union with another person
  • Both partners present themselves to the public as a married couple

How Many Years Do You Have to Live Together for Common-Law Marriage in South Dakota?

There is no required length of time to create a common-law marriage in South Dakota. Since the state does not recognize common-law marriages, cohabitation requirements for establishing this type of union depend on the applicable law where the marriage was created.

What Does It Mean to Be Legally Free to Marry in South Dakota?

Anyone who is legally free to marry in South Dakota has met the state’s requirements for receiving a marriage license. These requirements include the following:

  • Each party is at least 18 years old and has submitted proof of age, such as a birth certificate. If either party is a minor, the person must provide written consent from a parent or guardian
  • Neither party is related to the other person as described in SDCL 25-1-6 and 25-1-7
  • Neither party is in an active marriage or similar union with someone else
  • Each party is mentally capable enough to get married

What is an Informal Marriage in South Dakota?

An informal marriage is a common-law marriage created in Texas. Section 2.401 of the Texas Family Code provides for informal marriages instead of common-law marriages. Therefore, all common-law marriages established outside of Texas would be referred to as informal marriages if said couples relocate to Texas. Parties should note that these terms do not affect the validity of such unions if correctly established in a state with supporting laws.

How Do You Prove Common-Law Marriage in South Dakota?

Parties may prove the existence of a common-law marriage by providing official documents to the effect. Depending on the state, several types of documents may be available for this purpose. For instance, Michigan requires common-law married couples relocating to the state to obtain a power of attorney and a medical power of attorney, allowing one spouse to make legal and medical decisions on the other spouse’s behalf. In Texas, a couple in an informal marriage should obtain a Declaration of Informal Marriage as evidence of the union. Anyone looking to prove a common-law marriage in South Dakota may provide any of these documents.

In addition, parties may submit documents proving that the couple continued their common-law union upon relocation to South Dakota. Applicable documents may include the following:

  • Joint account statements, including credit accounts, bank accounts, and tax returns
  • Documents showing that both persons used one surname
  • Rental agreements or joint leases with both partners’ names
  • Insurance policies that list both partners as spouses
  • Mortgages or loans jointly taken by both parties
  • Birth certificate of a child born to both partners, listing the spouses as parents
  • Any document showing that the couple lived together
  • Witness statements confirming the union or stating that partners referred to each other as husband and wife

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 South Dakota After Death?

Official documents confirming the union can serve as proof that a common-law marriage did exist in South Dakota. If one spouse dies, the other spouse may back their claim with documents such as affidavits and declarations. In addition, statements from family members, friends, and colleagues may also be considered. In some cases, courts may also require these third parties to provide their testimonies in person.

Do Common-Law Marriages Require a Divorce in South Dakota?

South Dakota common-law marriages require a divorce. While common-law marriages cannot be established in South Dakota, the state allows partners to end their relationship by filing a divorce petition. Since the state does not offer common-law divorces, a spouse looking to terminate a common-law marriage must file a proper divorce petition.

According to SDCL 25-4-2, interested parties may file a divorce petition on any of the following grounds:

  • Willful desertion
  • Extreme cruelty
  • Adultery
  • Conviction of felony
  • Habitual intemperance
  • Willful neglect
  • Irreconcilable differences

Although parties may be specific about the reason for the filing, the court may grant the divorce if one party states that there are irreconcilable differences between the spouses. South Dakota also has a residency requirement for persons filing a divorce petition. SDCL 25-4-30 states that the plaintiff must be a state resident when commencing the divorce action or should be stationed in the state if a member of the armed forces. However, the plaintiff does not have to maintain their residence or military presence to receive a final decree or judgment of divorce. Furthermore, South Dakota law does not specify the length of time required to meet the residency requirement.

Does a Common-Law Wife Have Rights in South Dakota?

Common-law wives resident in South Dakota have rights provided their unions were created in states with supporting laws. In a divorce, common-law wives may receive the same rights and entitlements available to wives in traditional marriages. Such rights may include spousal benefits and property rights. Other rights may be applicable on a case-by-case basis.

Can a Common-Law Wife Collect Social Security in South Dakota?

South Dakota common-law wives may collect social security benefits. Eligibility is dependent on the validity of the common-law marriage if created in a state with supporting laws. The Social Security Administration (SSA) only processes applications from persons within three months of age 62. If eligible, parties may fill a Statement of Marital Relationship form and submit it along with a Statement Regarding Marriage form completed by a blood relative. Completing the Statement of Marital Relationship form requires providing the following details:

  • Full name of each spouse
  • Names used by the spouses before and after cohabitation began
  • City or town and state of residence
  • Month and year cohabitation began
  • Length of cohabitation
  • Any applicable periods of separation since the couple began living together
  • Names of children born to the couple where applicable
  • Each child’s date and place of birth
  • Details of any joint business dealings
  • Names of close relatives, neighbors, and employers who knew about the relationship

Eligible persons may apply online, visit a local social security office, or contact the SSA via phone at (800) 772-1213 or TTY at (800) 325-0778.

Are Common-Law Wives Entitled to Half in South Dakota?

Common-law wives are not entitled to half in South Dakota. Since South Dakota is not a community property state, courts do not automatically split property in half in the event of a divorce. Instead, South Dakota courts use the principle of equitable distribution. This means that judges enforce fair distribution of property, depending on several different factors. These factors may include each party’s contribution to the marriage and any faults ascribed to one party. Although no party is entitled to half, a court may decide that splitting property 50-50 is the most equitable thing to do.

Before splitting property, the court must establish which assets qualify as marital property and separate property. Marital property describes all property acquired during the marriage, especially if jointly acquired or used for the benefit of both parties. On the other hand, separate property describes assets acquired before the union, or gifts given to one spouse. However, parties should note that property acquired before the union may be considered marital property if used for the benefit of the marriage or otherwise shared between the spouses.

How Do You Get A Common-Law Marriage Affidavit in South Dakota?

A South Dakota couple may obtain a common-law marriage affidavit from the state where they established the marriage. The information available on an affidavit may differ between states. However, most affidavits contain the partner’s names, the date they created the marriage, and the jurisdiction of establishment.

When Did Common-Law Marriage End in South Dakota?

South Dakota recognizes common-law marriages created in the state until 1959. Currently, the state only recognizes common-law marriages appropriately established in jurisdictions with applicable laws. However, according to SDCL 25-1-29, commonly marriages established before July 1, 1959, are still considered valid.

What is Considered Common-Law Marriage in South Dakota?

Valid common-law marriages in South Dakota depend on the requirements in the states where the unions were established. South Dakota recognizes out-of-state common-law marriages, as well as common-law marriages established within the state before July 1, 1959. All other unions in South Dakota are not considered valid.

Does the Federal Government Recognize South Dakota Common-Law Marriages?

The federal government does not recognize common-law marriages established in South Dakota. Only a few jurisdictions enjoy federal recognition of common-law marriages created within. As of 2021, these jurisdictions include Texas, South Carolina, Utah, New Hampshire, Kansas, Rhode Island, Colorado, Iowa, and Montana. The federal government also recognizes common-law unions established in Oklahoma, Pennsylvania, Ohio, Georgia, Alabama, and Idaho, depending on the date the union was created.