In Oklahoma, can we file jointly if we are common law married?
Video Transcribed: Edward Kelley here, 188 Debt-Line, answering your bankruptcy questions. We’re getting toward the end of our series on bankruptcy and divorce. Here’s a question I get fairly frequently.
Can we file jointly if we are common law married?
Well, here in the state of Oklahoma we do recognize common law marriages and under certain circumstances, and the answer is yes. The way the bankruptcy code works, if you are in a common law state where your federal jurisdiction lies, it recognizes those marriages and your marriage is recognizable under the state laws, then generally you can file as married in that federal district, although you do need to be prepared to prove that common law marriage.
Now I can tell you in practice, in Oklahoma, I haven’t been challenged much on that, although the people I’ve put forward have been pretty clearly common law married. But certainly if the trustee wanted to challenge that, they could. I suppose, in worst case, you might have to bifurcate and file two separate cases, or I suppose even if fraud was found, that could happen, but I would think more likely it’ll be bifurcated. But you certainly have to be honest and truthful when you’re dealing with the court in every way.
However, for example, in Oklahoma, common law is recognized. You can file as a married couple if you meet the requirements for common law marriage. Also, even if you’re in a state that doesn’t recognize common law marriage, if you have a common law marriage from a state that does recognize it, generally that jurisdiction will give faith and credit to that common law marriage. I’m not too experienced in doing that in other states. So you’ll want to talk with an attorney in your local jurisdiction if you’re looking to file in a state that doesn’t recognize common law marriage, but you have a common law marriage from a state that does.
Particularly in Oklahoma, what are the signs of a common law marriage? Well, the basics are that you held yourself out openly to be married and had a meeting of the minds such that you considered yourself to have been wed. So, if there was any kind of ceremony that maybe didn’t meet the requirements of a 
The classic example is filing taxes together, particularly using the same name, joint bank accounts, using the name of your spouse. If you’re the wife and you’ve been using the last name for years, although you don’t have a marriage license or you don’t have a universally recognized ceremony showing you’re legally married, that’s another good example.
There isn’t a hard and fast rule, but there’s lots of case law of what is and what isn’t. Generally, I tell people, if you’ve been filing taxes together, if you’ve got joint accounts, if you’ve been using your spouse’s name… Obviously, if you’ve been cohabiting for years, if you have kids together that you’ve been raising, then chances are you’re not going to be challenged on a common law marriage.
So that’s it for today’s series, today’s edition of the Bankruptcy and Divorce Series. We’re going to wrap this up with the next and last edition, which will be an overview and again pointing out what a good tool bankruptcy can be under the right conditions during a divorce.
I realize as I say that, even if you’re divorcing, so to speak, under a common law marriage, which in Oklahoma, again, you have people filing for divorce because they want something from that other spouse but they weren’t legally married, so that divorce is the only way to get it. So if a common law marriage is falling apart, many times you may not have agreement. But if you do, once again, it can be a powerful tool.
We’ll wrap this up on the next edition of 188 Debt-Line. As always, you can reach me at that number or email me at Edward at wirthlawoffice.com