## Common-law marriage in South Dakota Common-law marriage is a relationship where a couple is treated as married — without a wedding ceremony or marriage license — based on cohabitation and mutual agreement to be married. It's a relic from frontier days when courts and clergy were scarce. Most states have abolished it. South Dakota's status is below. ### South Dakota's posture South Dakota **does not recognize** common-law marriage. Couples must obtain a marriage license and have a ceremony to be legally married. ## What recognized states typically require Where common-law marriage is recognized, the elements are similar across states: 1. **Agreement to be married** — present, mutual intent 2. **Cohabitation** — living together as a couple 3. **Holding out as married** — publicly representing yourselves as spouses Some states add: - **Capacity** — both parties of age and not already married - **Consummation** of the relationship - **Reputation in community** as married Mere cohabitation — even for decades — is NOT enough. Without the agreement and holding-out elements, you're roommates with feelings. ## How recognition usually comes up - **Death of one partner** — surviving partner claims spousal inheritance - **Breakup** — one partner claims spousal property division - **Insurance / benefits** — health insurance, Social Security, pension - **Tax filing status** — joint vs single - **Immigration** — spouse-based visas - **Hospital visitation / medical decisions** - **Wrongful death** — surviving partner has standing only if married ## Same-state recognition If you're common-law married in a state that recognizes it, the marriage is generally valid in EVERY state under the Full Faith and Credit Clause — even states that don't recognize new common-law marriages. Example: Couple in Texas (recognized) lives together, agrees to be married, holds out as married for 5 years. They move to California (not recognized). They're STILL legally married in California — California must recognize the Texas common-law marriage. ## Ending a common-law marriage There's no "common-law divorce." To end a common-law marriage, you go through formal divorce — same process as ceremonial marriages. This trips up many people who assume that since the marriage was informal, they can just walk away. If you can't agree on whether the common-law marriage existed, the divorce court adjudicates it as a preliminary matter. ## Cohabitation agreements as alternatives If you live with a partner in a state that doesn't recognize common-law marriage — and you want some legal protections — consider a **cohabitation agreement**: - **Written contract** between unmarried partners - **Defines property rights** (who owns what; how to split if relationship ends) - **Addresses financial obligations** (joint expenses, debts) - **Can include support / palimony** provisions in some states - **Doesn't substitute for marriage** but provides some structure Marvin v. Marvin (Cal. 1976) launched the "palimony" concept — recognizing some property and support rights between unmarried cohabitants. Many states have followed; some have rejected. ## Domestic partnerships and civil unions Several states recognize formal **domestic partnerships** or **civil unions** — registered relationships giving some marital rights without marriage. Less common since Obergefell (2015) made same-sex marriage legal nationwide. States with active domestic-partnership programs include CA, NV, OR, WA, NJ, ME, DC, plus various municipal registries. ## Special concern — claims of common-law marriage Common-law marriage claims often arise: - **At death** — to claim spousal inheritance / Social Security / pension - **At breakup** — to claim property division - **For insurance benefits** - **Strategically** — when one party benefits from being married, the other often denies These cases are evidence-heavy — joint tax returns, joint accounts, public introductions as spouse, health insurance enrollments, mortgage applications, social media posts, employment records, etc. ## What you should do If you live with a partner in South Dakota, understand whether your state recognizes common-law marriage AND what the requirements are. If you're in a recognized state and don't want to be considered married, avoid the indicia (don't file joint taxes, don't introduce as spouse, don't share insurance as spouse). If you're in a non-recognized state and want protections, consider a cohabitation agreement. South Dakota family-law attorneys can advise on either side. --- *This guide is general information about South Dakota law as of early 2026 and is not legal advice. Common-law marriage law has nuances and several states have shifted positions in recent decades. Talk to a licensed South Dakota family-law attorney about your specific situation.*