SC Not really married, not really benefits, not really leave

August 5th, 2019 by Reggie Gay at Burr Forman McNair


Not married

You May No Longer Be Married in South Carolina

The Supreme Court of South Carolina recently issued an Opinion prospectively abolishing Common Law Marriage in South Carolina.  Stone v. Thompson, Op. No. 27908 (S.C. Sup. Ct. filed July 24, 2019) (Shearouse Adv. Sh. No. 30 at 94).  The effective date is July 25, 2019.  The Court’s reasoning was partially based on modern culture which is vastly different than the past.  The Court determined that South Carolina’s recognition of Common Law Marriage rested on outdated “moral paternalism”.  The stigma associated with unwed mothers and having children out of wedlock, or the difficulty of having a proper officiant for a marriage is no longer applicable.  Thus, the Court found the underlying rationale for recognizing Common Law Marriage no longer exists.

In its decision, the Court explained the reasoning for abolishing Common Law Marriage stating “We have concluded the institution’s foundations have eroded with the passage of time, and the outcomes it produces are unpredictable and often convoluted…  [T]he time has come to join the overwhelming national trend and abolish it… [and] parties may no longer enter into a valid marriage in South Carolina without a license…  We can discern no more efficacious way to fulfill these interests than to require those who wish to be married in our State to comply with our statutory requirements.”

The Court abolished Common Law Marriage prospectively meaning that parties can no longer enter into a valid Common Law Marriage from July 25, 2019 forward.  Common Law Marriages previously recognized as valid will remain valid.  Moving forward, couples will have to comply with the statutory requirement and have a valid marriage certificate.  The Supreme Court also clarified the test to be used by lower courts in determining whether a previous recognized Common Law Marriage continues to be recognized as valid.  This test or standard is the “clear and convincing evidence” standard.  The Court stated that a party asserting a Common Law Marriage is required to demonstrate mutual assent to be married by clear and convincing evidence using traditional factors, but the Court may not rely on a presumption based on cohabitation.

So what does this Supreme Court decision mean for South Carolina employers?  This change to the law may potentially affect employers and employees in regard to leaves of absence and benefits.  As a result of this decision, it now becomes important to determine the date on which an employee who maintains he or she is married under Common Law was recognized.  As an example, Common Law spouses have been eligible to take FMLA leave to care for a Common Law spouse suffering from a serious health condition.  Following this decision, employees will only be able to take FMLA leave to care for a spouse in a Common Law Marriage if the marriage was recognized before July 25, 2019.  Going forward, employees who were married July 25, 2019 or afterwards will have to have a valid marriage certificate in order to take FMLA leave to care for a spouse.  Depending on the language used in a company’s paid leave and other benefit programs, the date of marriage may affect eligibility in these programs as well.

In summary, while an employer may not have initially given any thought to the abolition of Common Law Marriage in South Carolina, the change in the law may actually impact how a company authorizes leave and other benefits.  Accordingly, an employer may want to consider asking employees to provide reasonable documentation evidencing the existence of a valid marriage.

 

This blog was written by Reggie Gay at Burr Forman McNair, which authors our Model Employee Policies for South Carolina Employers. You can find more in their Labor & Employment e-note on their website.





Can't find what you're looking for?

Sign up for free to gain access to our complete HR Library


Free Webinar
Handling Real World Problems

September 19th, 2019 at 12:00pm CDT

SHRM & HRCI certified

Related posts

Employee benefits law

This guide is intended to provide a general overview of the principal laws that apply when an employer chooses to provide benefits for its employees. The purpose of the guide is to help employers communicate with their advisors more effectively about employee benefits and benefit programs. Emp...

SC Common law marriage is no more – this affects the workplace how?

South Carolina Abolishes Common Law Marriage:  The Impact on Workplace Law The South Carolina Supreme Court just ruled that the state will no longer recognize common-law marriages. This decision will have a direct impact on South Carolina workplace law, requiring many employers to adjust their...

401(k) plan + payroll provider = 401k good things

This blog is courtesy of Jennifer Ready at HK Finanical Services and the Iowa Association of Business and Industry (ABI) and can be found on the ABI website.   Top Reasons to Integrate Your 401(k) Plan with Your Payroll Provider Jennifer Ready Combining your 401(k) plan administration...

Open enrollment – personalizing perks pays off

SHRMS's third in a series of articles on meeting fall 2018 open-enrollment challenges deals with providing employees with the opportunity to tailor benefits to meet their needs. How can customized benefits increase loyalty? Would employees pay for them on their own? Would they take a pay cut f...

Help hiring holiday help here

This blog was written by John Monroe and Kristina Griffin at FordHarrison, which authors our "Hiring, Firing and Discipline for Employers" and "An Employer's Guide to FMLA and ADA". You can find the original blog post and their Legal Alerts on their website.   Welcome to the Holiday Season!...

I've changed my name – to Optimus Prime

So say an employee, let's call him, for purposes of this exercise, Scott Edward Nall, walks into your office to let you know he has changed his name to Optimus Prime.  Do you: snicker and ask him if his Laser Axe Hand is really made of energy wonder why he isn't riding a dinosaur fall t...

Four-legged office mates and the pawternity policies they benefit

This blog was written by Danielle Krauthamer at Fisher Phillips, which authors several of our resources. You can find the original post and the On the Front Lines newsletter on their website.   Pawternity Leave: Are Employers Barking Up the Wrong Tree With Pet-Based Leave? We’ve all hear...

Employment agreements – what to do before you do

This blog was written by Judy Yi at Polsinelli. Polsinelli authors hrsimple resources in Missouri, Kansas and Illinois. You can find the original blog post and their labor and employment blog Polsinelli at Work (which is excellent) on their website.   Five Issues When An Employer Is Consi...

Milk Stork delivers for working mom's and their baby

If you are in the practice of sending employees on overnight business trips AND you employ new mothers AND you believe in treating your employees right we’ve got just the bird for you.  Milk Stork is the first breast milk shipping company to support nursing mothers who are on the road and need...

PTO on the house!

Traditionally, most companies have offered a paid leave package to employees that differentiates between vacation, personal and sick days. However, combining all categories into a single paid time off (PTO) bank is a growing trend. A PTO model increases employee flexibility and has the potential ...

How to treat fringe benefits for employees

This chapter provides an overview of some fringe benefits that are not among the benefits that can trigger coverage under the Employee Retirement Income Security Act (ERISA) and are not discussed elsewhere in this book. Generally, a fringe benefit is a form of non-cash compensation paid to an emp...

Service dogs at work

(Customer) service dogs at work can work. Our authors @Littler help show how here

NY 11 Employment Laws You Missed if You Blinked

As 2019 wears on, New York has continued to churn out new employment laws and regulations that appear to be pro-employee. From the latest state legislative push to the workings of the New York City Council, here are the nuts and bolts of 11 employment laws that have passed or gone into effect thi...

Key FMLA definitions

Coverage for employers As with other employment-related statutes, the FMLA applies only to certain employers. Under the FMLA, an "employer" is: any person engaged in commerce or in any industry affecting commerce that employs 50 or more employees for each working day during each of 20 or...

Nursing mothers, employers and the DOL – discuss

In a surprise announcement, the U.S. Department of Labor introduced Linda Richman and Liz Rosenberg (pictured) as hosts of the Supporting Nursing Mothers in the Workplace Online Dialogue during the week of August 19 through August 23, as well as a Twitter chat on Tuesday, August 20, 1:00pm - 2:00...

Make your workplace a SUE-free zone

Ten ways employers get themselves sued (Part One) Take care of yourself! In medicine, sometimes the practices that get people in trouble are pretty simple. Too many nachos, and not enough leafy greens. You'd rather binge-watch Seasons 1-3 of Stranger Thingsthan go for a walk. You hate needl...

MN I gotta do what?

New and Updated Requirements Take Effect for Employers in Minnesota The last few months have brought a number of changes, big and small, to what is required of employers in Minnesota.  Here are some of the changes that Minnesota employers need to know to stay compliant in an ever-changing lega...

Workplace leave for fathers who know best

"Dads in the workplace" quiz! Happy Father's Day weekend! How much do you know about the rights of dads in the workplace? Take our quiz and find out! As always, the answers appear immediately after the questions, so you can cheat all you want, as long as your cheating doesn't disturb Dad's ...

"Moms in the Workplace" quiz!

"Moms in the Workplace" quiz! And dads get to play, too. After all, we wouldn't be moms without you!   ;-) Happy Mother's Day weekend! How much do you know about moms in the workplace? Take our quiz and find out! As always, the answers appear at the end of each question, so you can cheat...

FMLA - speak clearly and carefully and explicitly

Be VERY CLEAR In Your Communications About FMLA! I often tell my crazy teenagers that it doesn’t matter what you mean to say – it matters what the other person actually hears. (I’m not sure they actually hear me when I say that…) And a recent Family and Medical Leave Act case proves my point a...

Better parental leave or you better believe parents leave

It’s Time To Be Creative: Historically Low Unemployment Rates Fuel New Approaches To Parental Leave In October 2018, NPR reported that the U.S. unemployment rate had dropped to 3.7 percent, the lowest rate in 50 years.  In some states, like Colorado, where I live, the rate is even lower (3.1 p...

Why You Should Care About Employment Law

Common Pitfalls for Emerging Companies Founders of emerging companies are often first-time employers and find themselves having to wade through the dense patchwork of state and federal labor and employment laws. This can be a confusing undertaking that often requires legal counsel. However, th...

Employers beware - what you say can and will be used against you

This blog was written by Darryl McCallum at Shawe Rosenthal, author of our Maryland Human Resources Manual. You can find the original and their Labor & Employment Report blog on their website.   Employers Beware: What You Say Can and Will Be Used Against You! Darryl McCallum Any H...

Holiday stew – ingredients for a happy and non-litigious holiday

Holiday stew – we all have our own recipe, but the base is almost always the same: booze, mistletoe and a generous pinch of unapproved time off. And be sure you don't have enough time to prepare or clean up. Join Gary Wheeler and Lori Mans for an hour as they provide the ingredients and know-h...

Election leave – employer's civic duty, migraine, or just wishful thinking (election, leave!)

This blog was written by Deidra Nguyen at Littler Mendelson, which authors our Model Policies and Forms for Maine Employers. You can find the original post and their Dear Littler (which is excellent) on their website.   Dear Littler: What is the Story with Employee Election Leave? Deidra...

Disability/pregnancy practices – what not to practice

This blog was written by Robin Shea at Constangy, which authors our Model Policies and Forms for Georgia Employers and our New Jersey Human Resources Manual. You can find the original on their Employment & Labor Insider blog (which is one of our favorites and is excellent).   Employers,...

FMLA leave before being eligible for FMLA leave

This blog was written by Thomas E. Reddin and Henry J. Thomas at Polsinelli. Polsinelli authors hrsimple resources in Missouri, Kansas and Illinois. You can find the original blog post and their labor and employment blog Polsinelli at Work (which is excellent) on their website.   Navigating...

No call/no show shows. No what about it.

No call. No show. Assume they quit. Find a replacement. Move on. Then who shows up but Ms. Nocall Noshow. Now what? Depends on what happened, your policy, potential laws (ADA? FMLA?), disabilities, stuff, junk. SHRM helps, with help from our author Fisher Phillips and long-time friend...

Notice: notices and forms for FMLA that were already expired now updated virtually unchanged

This blog was written by Fiona Ong at Shawe Rosenthal, author of our Maryland Human Resources Manual. You can find the original blog and their Labor & Employment Report newsletter on their website.    Time to Update Those FMLA Forms!!! Fiona W. Ong Finally! The new Family and Medi...

School-related parental leave does not mean you forge a note from your kid

This blog was written by Jason Plowman at Polsinelli. Polsinelli authors hrsimple resources in Missouri, Kansas and Illinois. You can find the original blog post and their labor and employment blog Polsinelli at Work (which is excellent) on their website.   Back to School Edition: School-...

Round up stew: sick leave, harassment, non-compete, etc.

This blog was written by Shennan Harris at Squire Patton Boggs. Shennan is a co-author of our Wages and Hours – An Employer's Guide. You can find the original blog post and their Employment Law Worldview on their website.   State Law Round-Up: New Sick Leave, Sexual Harassment Laws and Othe...

No FMLA for pet's death

This blog was written by Fiona Ong at Shawe Rosenthal, our author of the Maryland Human Resources Manual. You can find the original blog post here and their Labor & Employment Report newsletter (which is excellent) here.   In a previous post about pet bereavement leave, I noted that t...

FMLA definitions

This blog is an excerpt from our book An Employer's Guide to FMLA and ADA, authored by Nancy Van der Veer Holt at Ford Harrison LLP. For more state specific leave information, go to the Products tab above and subscribe to the Human Resources Manual for your state. FMLA coverage for employers ...

FMLA - "leave" as in "leave the employee alone"

FMLA contains "leave", as in "the employee isn't at work" but also as in "leave the employee alone or else". See what the boundaries are to avoid the "or else" from one of our authors @Ogletree Deakins.

Paternity leave

What is paternity leave? Sometimes referred to as “family leave” or “parental leave”, paternity leave is an excused absence from work to care for and bond with a new child - whether by birth, adoption, or foster. This leave can vary in duration and may be paid or unpaid. Are employers requi...

Paid family leave: a growing trend

Legally mandated family leave policies have a relatively short history in the United States, and a requirement that the leave be paid is even shorter. In 1993, Congress enacted the Family and Medical Leave Act (FMLA) after finding that employees were having to choose between working and taking ca...