Yes, you read that title correctly and I want to start by explaining my professional introduction to is common law marriage legal in minnesota in the state of Minnesota, where I do most of my business representation. We have a click bait, sensationalized world we live in, and I thought I might capitalize on that for this post, give it some click power. This article is not about a clandestine affair with a side of quail on a bed of lentils, but rather the potential legal implications of personal relationships in Minnesota, and the consequences those personal relationships might have on business.

What is Common law marriage you might ask? What about in Minnesota? Ok – since you asked, here are the top ten things you should know about Common Law Marriage; stick with me to the end and I will tie it all back to business matters that you will find useful.

Common law marriage is a private contract between two individuals (usually related to consent and cohabitation) over a long period of time, with no ceremony and no public record. One of the many questions to consider is whether it exists in your jurisdiction and if so, what are the requirements? For example, in Minnesota, there are 5 essential elements to establish a common law marriage: The Parties consent to a marriage, the parties co-habitate in Minnesota, the parties present themselves to the community as married, each party must then have the legal capacity to marry, and finally that the parties must intend to be married (meaning that it cannot just be a co-habitation).

By definition, you can see that a common law marriage is typically informal, and we can easily see how an informal understanding or impression could destroy your ability to prevail in a breach of contract matter, like a supply agreement, because you thought you had the capacity to contract with an individual entity and not a “married couple”. In this way, a business owner may suffer financially because her business associate was “married” and the assets of that marriage are subject to property division in that marriage, which would not have been the understanding of the non-married business partner. It is the capacity to contract and the assets involved that is the primary concern.

The Fourth District Court of Appeals of Minnesota has found that the issue of common law marriage is a factual question that must be considered on a case by case basis. It is important to understand the requirements for a common law marriage to exist in Minnesota and to think about whether your business client or prospective client is a party to a common law marriage, as the assets of the common law marriage could place your business client in a precarious position when contracting with the assets that might otherwise be separate property, but are subject to division or even in their spouse’s name.

Oftentimes, when we are going through a negotiation process, we do not think we need to ask questions of our representatives that address their personal relationship issues. In the common law marriage situation illustrated here, the misunderstanding regarding the personal relationship of the parties to a contract could be both frustrating and legally expensive. What do you do if you want out of a contract with who you think is an individual entity?

The way the Minnesota courts look at it, you can shell out hundreds of thousands of dollars on legal fees to get the contract done and when the deal goes south, you might be held accountable for a damage award against your individual partner (or vice versa, as explained above) that could have been avoided to begin with.

In Minnesota, you might not ever know if your business partner(s) were involved in a common law marriage and the reality of whether or not a business entity has the capacity to contract before you actually have a dispute over the contract with that partner/entity. A clean way of dealing with the issue is to be forthright with your business associates regarding your understanding of whether the parties have the capacity to contract and to require that both contracting parties sign the contract. In some instances, you may just have a problem to deal with after a contract dispute and have to litigate to determine how to address your individual concern. One of the best ways of preventing this issue is to conduct all contracts with the business entity, not an individual you know has a marriage-like relationship with the entity due to financial issues and want to prevent a claim of division of marital property.

While the Minnesota courts have held that marriage is indissoluble (USA marriage without divorce), they take the position that property is not classified by virtue of the property ownership held by the parties but rather by how it is used by the parties. This is not the law in more than half of our fifty states, so if a married individual is a business owner and uses specific items, tools of the trade, in her business, she needs to be clear that the use is only for business purposes and not for personal use.

The Minnesota Department of Revenue has a fact sheet available to the public to explain common law marriage in Minnesota, but for a more complete overview, I suggest taking a look at the article posted on Borey Design – Common Law Marriage in Minnesota by Jeremy Borey. The article takes common law marriage in Minnesota to a more detailed level and provides in-depth analysis and citations to applicable statutes and case law. Not to mention, it really is a great article and certainly relevant to anyone conducting business in Minnesota.

It is important for your business clients to be aware of the requirements for a common law marriage to exist in the state of Minnesota and to proactively address the issue with their individual business partners to be clear as to how things are going to operate at the time of contracting, allowing the business client to make an informed decision as to how and with whom they are entering the contract. With the expectation of a common law marriage in Minnesota, can you assume that assets are not going to be at risk for marital property implications? If the answer is yes, then that might be a risk that you want to avoid by not contracting with the individual and treating the business entity as a separate business.

For more information on common law marriage, you can visit the Wikipedia page on common law marriage.