Q: My ex and I have lived together from 2013 to Nov. of 2023 when she left. We have a 10 yr old daughter who lives with me.

A: To prove a common law marriage, you need evidence of each of the following:

1. An agreement between the parties to be presently married (i.e. not to get married in the future);

2. Living together as husband and wife after that agreement;

3. Publicly holding each other out as spouses after that agreement.

Filing a joint tax return is prima facie evidence of the last element, but can be rebutted by other evidence.

Alternatively, you can prove a common law marriage with a certified copy of a Declaration of Informal Marriage signed by both spouses and filed with the County Clerk.

With respect to the house, agreements concerning the ownership of a residence must be in writing and signed by the person against whom you wish to enforce the agreement. In the absence of a valid written agreement signed by your ex that you own an interest in the home, the home is her property and likely can be sold by her.

Your name being on the deed of trust might help your case as to the existence of a common law marriage. A spouse of a property owner typically must sign the deed of trust to subordinate the spouse's homestead rights to the lender's security interest. In other words, a spouse could make it more difficult for a lender to foreclose if the mortgage isn't paid without signing the deed of trust. On the other hand, depending on the totality of the loan documentation, that might make it even more difficult for you to claim any ownership rights in the house.

If you were to file a suit for divorce, it is likely that the court would award you temporary exclusive use and possession of the house since you have been paying the mortgage and your ex moved out. But it is also likely that the court will find that the house is your ex's separate property. You will want to explore with a divorce lawyer whether you may have any reimbursement rights. Usually, however, paying the mortgage on a spouse's separate property home is offset by the fair rental value of the home when you are living in the home. The fair rental value is usually more than amount of the mortgage payment.