Common Law Marriage South Dakota

Frequently Asked Questions about Common Law Marriage in South Dakota

What is a common law marriage in South Dakota?

A common law marriage in South Dakota would be considered a marriage in which no marriage licenses were received, nor were there any formal recognition of legal union. Instead, a common law marriage in South Dakota becomes recognizable once both parties agree that they are, in fact, married and carry on with a relationship similar to those shared by traditionally married couples, particularly a relationship marked by cohabitation and monogamy.

The reason that someone would like to get a common law marriage in South Dakota is that it entitles a person to all the same rights of marriage. For instance, a spouse of someone via common law marriage in South Dakota will be entitled to their insurance’s program’s spousal health benefits. Additionally, they will qualify as a spouse on federal tax forms. Finally, any benefits payable upon death, such as life insurance benefits, will automatically go to a spouse, even a spouse via common law marriage, unless other issues are raised.

The purposes of common law marriage in South Dakota are centuries old. It dates back to the time before cars, when individuals living in isolated settings, particularly in a relatively rural state like South Dakota, might not have ready access to a priest. The flexibility of common law marriage also allowed thousands of women to save their reputation when out-of-wedlock intercourse was more of a taboo than it is now.

Can I get a common law marriage in South Dakota?

No. Unfortunately, common law marriage in South Dakota was banned in 1959. As the reasons for common law marriage in South Dakota slowly began to evaporate—cars made priests and city officials more accessible, while growing tolerance led to decreasing stigma surrounding children born outside of marriage—the state’s animosity toward it grew. Records were depended on more and more to make sure that benefits were doled out appropriately, and the lack of records which common law marriages demand made it anathema for the state.

Are there any alternatives to common law marriage in South Dakota?

Yes, if you wish to get a common law marriage in South Dakota, there may still be one or two options for you to successfully explore.

You should know that there is a built-in grandfather’s clause with the current ban on common law marriage in South Dakota, which means that any marriage which began in 1959 or prior is still valid. Of course, determining when a common law marriage began is very difficult, but if you can prove that cohabitation began in 1959, you might be on your way to demonstrating this to a court.

The other fact that you should be aware of is that some other states do recognize common law marriage, and you can get a common law marriage there. What’s more, South Dakota will be legally obligated to respect your common law marriage and treat it like a typical one with all the benefits that implies. If you need legal advice and assistance, contact South Dakota lawyers.