Posted by Donna McDaniel on 11/16/10 1:39pm
Msg #361575

Common Law Marriage

I have a signer today at 4:00 who was recognized by common law to be married in another state and received her DL with her common law husband's name.

When she moved to FL, they issued her license in her maiden name as FL doesn't recognize common law marriage, that's what they told her.

She is on title as married, using her married name. The docs have her married name (as a single woman, no less) but her ID has her maiden name.

She has her old DL from the other state, it is expired. (No idea why they didn't take it from her.)


Title says they are going to change the signature lines to Jane (married name) AKA Jane (maiden Name).

Can I use the old DL as satisfactory evidence if it was issued within the last 5 years?

Does anyone foresee an issue here?

Thoughts, please.

Reply by FlaNotary2 on 11/16/10 1:44pm
Msg #361576

The issue here, is that the parties are NOT married in the eyes of Florida law. She should not be on the title as married, because she is not married. I would suggest they go to the courthouse ASAP and legalize this thing. I know you are in a tough spot because title is making a huge mistake.

If her other DL was issued within the past 5 years, Florida law says you can use it.
BUT, if that DL is one day over five years old, I would say no can do. Credible witnesses don't apply to this situation either. I wouldn't even do the "who represented to me" certificate because she has no right to be known by her husband's last name if she isn't married to him, unless she has legally changed it by court order.

She could always play the "common law name change" card, but I doubt she would be very successful at the DMV trying to change her name based on a common law name change.

F.S. 741.211 "No common-law marriage entered into after January 1, 1968, shall be valid"

Reply by Donna McDaniel on 11/16/10 1:59pm
Msg #361577

Robert, I appreciate your input, but your statement 'I wouldn't even do the "who represented to me" certificate because she has no right to be known by her husband's last name if she isn't married to him, unless she has legally changed it by court order.' is not my call to make, UPL. Or, is it?

As a notary, I can only rely on the identification presented.

Reply by FlaNotary2 on 11/16/10 2:12pm
Msg #361579

The "represented" certificate is in the handbook in reference to women who have recently changed their name due to marriage, although it can be used for circumstances where a person genuinely is known by another name. In this case, the woman is NOT legally known by another name. This woman can not prove that her name has been changed. The manual suggests that you view supporting documents to establish the name change. In this instance, there are no such documents. That's not UPL, that's exercising your discretion as a notary.

In your circumstance, if the woman has her old D/L issued less than 5 years ago, you can use it. Otherwise, I would use her current D/L, and cross out any reference to the married name in my certificate.

Reply by PAW on 11/16/10 2:27pm
Msg #361583

>>> In this case, the woman is NOT legally known by another name. <<<

I disagree. She may not be known in FLORIDA by her 'married' name, but she certainly is known by it in reality, and legally in other jurisdictions.

AKA's are not limited to legal names within any one jurisdiction. I don't think AKA's have to always be "legal" names either. They are aliases no matter how they were used, legally or not.

Reply by Tess on 11/16/10 2:12pm
Msg #361580

Exactly, her current FL license supersedes any other DL, therefore that is the name "I" would use.

Reply by PAW on 11/16/10 2:15pm
Msg #361581

You're 100% correct Donna. You cannot certify that they are married or not. Not within your purview. So you must rely on ID as presented. Yes, you can use the old license if it was issued within the past 5 years, or, you can use the new FL license. I suggest you use the "representative" wording, since she was known by her 'married' name as well as her maiden name, to tie the two names together.

Reply by Donna McDaniel on 11/16/10 2:28pm
Msg #361585

I really don't think this loan will close once it gets back to Title. The ID they will be getting will have her maiden name on it and that's not what is on Title.
I am over trying to explain this to the escrow officer, she's sure an AKA statement will cover it on her end.
We'll see what happens.

BTW, I joking offered to marry them but she told me she left the abusive SOB years ago. They have a child who also has his last name.

Reply by HisHughness on 11/16/10 2:27pm
Msg #361584

***The issue here, is that the parties are NOT married in the eyes of Florida law. She should not be on the title as married, because she is not married.***

A box of doughnuts says you're wrong, Robert.

Common law is simply another way to get married in many states, Texas among them. It is analagous to getting married in a Gypsy ceremony; a different way to do it, but you're still married. You are in every sense married, and if you wish to separate legally and split up property, you have to get a formal divorce. All children born to such a marriage are legitimate. Texas has actually formalized commonlaw marriages (called "informal marriages" here); you can go to the county clerk and file a certificate of your commonlaw marriage. That eliminates the biggest problems with such unions, which is proving them -- a problem not encountered with ceremonial marriages because the officiator files a certificate attesting to the marriage.

Finally, under the Full Faith and Credit Clause of the U.S. Constitution, I think Florida is obligated to recognize commonlaw marriages contracted in other states, which apparently is the case here.

As an aside, my last wife and I wanted to get married in New York at the Statue of Liberty (I had been carrying a torch for some time, and it seemed an appropriate place). So we wrote our vows, recited them at the shrine, hijacked a German tourist to take our picture so we'd have something to remember it by, then came home and filed the informal marrige certificate. And I can fully attest that a divorce is required to dissolve such a marriage, and that they ain't any less painful than a divorce from a ceremonial marriage.

Reply by FlaNotary2 on 11/16/10 2:33pm
Msg #361587

>>>under the Full Faith and Credit Clause of the U.S. Constitution, I think Florida is obligated to recognize commonlaw marriages contracted in other states, which apparently is the case here<<<

Not so. Case after case in Florida has established that no common law marriages are recognized. It's also set forth in our statutes.

Reply by HisHughness on 11/16/10 2:39pm
Msg #361590

The box of doughnuts bet still stands.

I find it unbelievable that if I marry in Texas, have five children, then move to Florida and decide to get a divorce, I would not have access to the state's courts to settle such matters as property, support and child custody rights.

Show me some cites.

Reply by FlaNotary2 on 11/16/10 2:49pm
Msg #361593

I would give you the cites, but the powers that be have decided not to renew our Lexis subscription.

You would have access to the courts to settle the parental responsibility for the children, as a paternity issue. If both parties represented to the court that they were validly married, it could go through as a divorce. But all it takes is for one of the parties to allege that there was no formal marriage, and it would be thrown out. JMHO.

Reply by HisHughness on 11/16/10 2:55pm
Msg #361595

***But all it takes is for one of the parties to allege that there was no formal marriage, and it would be thrown out. JMHO.***

And I think your Honest Opinion is wrong. I think Florida is bound to recognize marriages contracted elsewhere.

Following your logic: Notaries cannot wed anyone in Texas. So if you are married by a notary in Florida, in a Texas divorce all you would have to do is allege that you were married by a notary public and you're out of the courthouse?

I just don't think it's going to work that way, Robert.

Reply by BrendaTx on 11/16/10 4:07pm
Msg #361605

Your opinion is the same as mine, Hugh.

That was my first thought.

If you get married in another state, you don't get unmarried when you make a utilities deposit and get a library card in Florida.

Reply by C. Rivera Chicago Notary Services on 11/16/10 4:29pm
Msg #361608

Robert, accept the fac that you are NOT the sole authority

on FL notarial law...and when you brag in a post such as this:

"Case after case in Florida has established that no common law marriages are recognized",

its a very good idea to back it up with those cases/citations you speak of.

"You would have access to the courts to settle the parental responsibility for the children, as a paternity issue. If both parties represented to the court that they were validly married, it could go through as a divorce. But all it takes is for one of the parties to allege that there was no formal marriage, and it would be thrown out. JMHO."

Not going to respond to this quote because for me, its evident that your experience and knowledge in the area of domestic relations is zero.

Reply by BrendaTx on 11/16/10 6:03pm
Msg #361614

He apologized an hour earlier than this post.

***Robert, accept the fac [sic] that you are NOT the sole authority***

It would seem that an apology is sufficient acceptance that he's not the sole authority here; or, am I missing something?

[Msg #361598]

Reply by C. Rivera Chicago Notary Services on 11/16/10 2:48pm
Msg #361592

provide proof of such cases please.....

i

Reply by HisHughness on 11/16/10 2:37pm
Msg #361589

I perhaps should have amplified

Commonlaw is very definitely NOT simply living together for a given period of time. You have to have the PRESENT INTENT to be husband and wife. A given period of cohabitation can be evidence that such a marrige exists in some states; in others, no. In some states you can be married at commonlaw almost instantly, though consumation is required (and for some of us, that's not a really extended process).

Much confusion is occasioned by use of the term commonlaw "marriage," as if the quality of the marriage itself is impacted by the manner in which it was contracted. That's just not the case. More logically, it should be called a "commonlaw wedding." After the wedding, no matter how it was done, you're married.

Reply by FlaNotary2 on 11/16/10 2:41pm
Msg #361591

Re: I perhaps should have amplified

But in Florida, the solemnization of a marriage (a "wedding") can NOT be legally performed without a license:

"741.08 Marriage not to be solemnized without a license.—Before any of the persons named in s. 741.07 shall solemnize any marriage, he or she shall require of the parties a marriage license issued according to the requirements of s. 741.01"

Not that this relates to the OP, as they were "common law married" outside of Florida, but this is just in response to you.

Reply by FlaNotary2 on 11/16/10 3:29pm
Msg #361598

I apologize, I misunderstood

Florida does not recognize common law marriages entered into in other states, unless the state where the marriage was entered into does recognize common law marriages. Florida does not recognize common law marriages entered into within its own borders.

1968 Op.Atty.Gen., 068-63, April 22, 1968.

Reply by FlaNotary2 on 11/16/10 3:32pm
Msg #361599

And common law marriage is only recognized in

Alabama
Colorado
District of Columbia
Iowa
Kansas
Montana
New Hampshire (for inheritance purposes only)
Oklahoma
Pennsylvania
Rhode Island
South Carolina
Texas
Utah


So, if the woman in the OP was not "common law married" in one of the above states, there is no common law marriage.

Reply by FlaNotary2 on 11/16/10 3:33pm
Msg #361600

Actually, I think PA abolished it recently n/m

Reply by Tess on 11/16/10 3:59pm
Msg #361604

Re: They did! n/m

Reply by FlaNotary2 on 11/16/10 2:27pm
Msg #361582

This is why I don't do loan signings

You get put into an awkward situation because you have a title company telling you to do something one way when your state laws tell you something else.

Do what you think is right. Sometimes you have to just follow your gut in this business. I think your issue here might be that her old D/L was not issued within the past 5 years. But, if it is, there isn't really any problem. Unfortunately, we do not have an SOS that can answer the phone to help with these types of matters. Maybe with the change in administration we will see some improvement.

Reply by Donna McDaniel on 11/16/10 2:54pm
Msg #361594

Re: This is why I don't do loan signings

'You get put into an awkward situation because you have a title company telling you to do something one way when your state laws tell you something else.'

You are so right there, Robert. I think a QCD or having her legally change her name would be a better resolution.
Too much reliance on these AKA statements, IMO.

Reply by Donna McDaniel on 11/16/10 2:57pm
Msg #361596

Still waiting on docs.

Maybe someone at the TC is now questioning their approach.

Reply by Lavergne Manuel on 11/16/10 3:20pm
Msg #361597

Re: Still waiting on docs.

I was told yesterday that in Alaska anyone can perform a marriage and the one who performs the marriage does not have to be a Minister. A Notary cannot perform one in his capacity as a Notary but he can as an ordinary citizen. The person who told me this is very knowledgeable. I don't know if it is true or not so I will not discuss it one way or the other. Just making a comment.

Reply by Bob_Chicago on 11/16/10 6:15pm
Msg #361617

in Alaska anyone can perform a marriage . I once tired

to convince a young, blond lady, that a bell hop could legally marry us.
She did not buy it. JK

Reply by C. Rivera Chicago Notary Services on 11/16/10 4:12pm
Msg #361607

"This is why I don't do loan signings", then why did you

get certified as a loan signing agent?

Reply by Bob_Chicago on 11/16/10 6:12pm
Msg #361616

I question if FL can fail to legally recognize her common

law marriage, is she was legally maried in the under the laws of the state where the common law marriage occured.
As I understand it, if a marriage is legal in the state where it occured, it is legal in all states
under the full faith and credit clause of the US constitution.
That is why the defense of marriage act was passed, so that same sex marriages in one state did not have to be recognized in other states.
Not legal advice yada yada.

Reply by Bob_Chicago on 11/16/10 6:22pm
Msg #361618

Re: I question if FL can fail to legally recognize her common

Oops, just saw Hugh's post above.
Guess that great minds do think alike. LOL