Affidavit of Marriage Attorneys

You may be asking yourself whether or not you need an affidavit of marriage. Although marriage requirements vary from state to state, all states require that a couple first obtain a marriage license as proof that their marriage took place.

However, sometimes, there are situations where spouses may need to prove they are legally married, especially where evidence of a valid marriage license is unavailable. In this situation, you may seek to execute an affidavit of marriage as proof a legal marriage exists.

An affidavit of marriage is a legally binding document that proves a legal marriage exists between two people. The affidavit of marriage must be signed by the people claiming to be spouses and by witnesses to the fact that there is a marriage. Although the requirements of an affidavit of marriage vary by state, typically, the affidavit can only be executed by a couple who:

1. Live together: The law presumes that a married couple lives together. If you do not reside with the person you are attempting to prove you are married to, the law will question the existence of your marriage, and your affidavit of marriage will likely not be recognized
2. Share living expenses: If a couple shares living expenses, that is evidence that they are (or believe themselves to be) married
3. Are not married to anyone else: United States law does not recognize bigamy (having 2 spouses at the same time) nor polygamy (having more than 2 spouses at the same time). This includes Utah, which was the last state to outlaw bigamy and polygamy
4. Have a close relationship with each other: Evidence of a close relationship helps show that you are married to one another. This could include such things as raising children together, attending events together, and visiting each other’s extended family
5. Are of valid marrying age: To get married in the United States, you need to be of marrying age. In 48 of the 50 states, both parties need to be at least 18 years old. In Nebraska, the marriage age is 19 years old, and in Mississippi, the marriage age is 21. In most states, a couple can marry while under the age limit if their parents give consent
6. Are not closely related by blood or adoption: Marriage law does not allow marriage of persons closely related by blood or adoption (consanguineous marriage). A lawyer can help you determine what levels of kinship are forbidden in your state. Typically, state law forbids marriage between any people who are second cousins or closer
7. Are mentally competent: To be validly married, both persons must have been mentally competent at the time of the marriage. “Competent” means that they had a sound mind and judgment to understand that they were getting married and understood what marriage would mean for them, legally and otherwise. Further, they must not have been tricked, coerced, or threatened into the marriage

The marriage affidavit must be signed in front of at least one witness and may need notarized.

Many states will provide you with an affidavit of marriage form, usually found online. Beware the pre-drafted online affidavits. You want your affidavit to contain all of the information that supports your claim of being married, and the cookie-cutter online versions of the marriage affidavit do not typically provide you with the opportunity to make certain that your affidavit is specific to the facts of your case.

Why Do I Need an Affidavit of Marriage?

One standard use for an affidavit of marriage is to prove the existence of a common-law marriage. In a common law marriage, a couple holds themselves out as being married. The couple intends to get married traditionally but has not yet done so (perhaps one of the partners is still married to someone they are divorcing). Common law marriage occurs without having an official marriage ceremony or obtaining a marriage license beforehand.

Not all states recognize common law marriages, but in those that do, a common law marriage is just as valid as a traditionally formed marriage, in the states that do recognize common law marriages, a common law married couple may need to complete a marriage affidavit to receive legal recognition of their marriage and the benefits afforded to a legally married couple (including tax benefits and recognition as next-of-kin in case of hospitalization or death).

Other reasons to execute an affidavit of marriage include:

• When a couple cannot locate their marriage license
• To prove to immigration officials that a couple is legally and validly married
• To prove to tax officials that a couple is legally and validly married
• To show one spouse has the legal right to an estate
• If an employer asks one spouse to submit an affidavit to add the other spouse onto the company’s health insurance plan, and the employee does not have a marriage license to present
• To prove to an insurance company that the couple was married to receive certain insurance proceeds

Are there Consequences to Signing an Affidavit of Marriage When I Am Not Married?

Yes. An affidavit of marriage is a legally binding document and must be notarized, meaning that the signer is swearing that the information in the affidavit is accurate. Anyone who signs an affidavit of marriage knowing that they are not married to the person they claim to be married can face penalties for perjury. This applies to any witness who signs the document knowing that the marriage does not exist.

Penalties may become more severe depending on the situation. For instance, falsifying an affidavit of marriage for immigration purposes is considered the federal crime of marriage fraud and carries penalties of up to 5 years in prison, loss of residency benefits, fines up to $250,000, and more.

Some states treat perjury as a misdemeanor, and others as a felony. Either classification carries the risk of incarceration and fines.

Are Marriage Affidavits Able to Validate an Invalid Marriage?

No. Marriage affidavits are only able to prove an otherwise legal marriage. An invalid marriage is any marriage that is not legal because of bigamy, incapacity, or duress. If any of this applies in your case, you cannot satisfy the requirements for a valid affidavit of marriage listed above, and the document will not be recognized.

Do I Need an Attorney for a Marriage Affidavit?

In certain situations, it is very important to prove that your marriage does exist, and having a properly completed marriage affidavit is a straightforward way to prove that.

You should seek out a well-qualified local family law lawyer to assist you with drafting a valid marriage affidavit, especially if you are facing any situation where failure to provide a valid marriage affidavit carries penalties. You want it drafted correctly the first time.

Further, if you have been accused of falsely signing an affidavit of marriage, either as a party or a witness, you should immediately seek the assistance of an experienced criminal defense attorney.