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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 22-FM-0770

JUDY CLEARY, APPELLANT,

V.

DOUGLAS H. CLEARY, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(2019-DRB-003871)

(Hon. Deborah J. Israel, Trial Judge)

(Submitted March 12, 2024 Decided July 18, 2024) 

Judy Cleary, pro se.

Marshall E. Yaap was on the brief for appellee.

Before MCLEESE and DEAHL, Associate Judges, and WASHINGTON, Senior 

Judge.

DEAHL, Associate Judge: Judy Cleary sued Douglas Cleary for divorce and 

division of property, claiming that the two were common law married for a period 

of four-and-a-half months after they had been in a romantic relationship for several 
2

years.1

 The trial court granted summary judgment to Douglas after finding that Judy 

did not adduce evidence from which a reasonable factfinder could conclude that the 

two had in fact been common law married. Judy now appeals. 

We reverse. The evidence raises genuine issues of material fact concerning 

whether Judy and Douglas were common law married. Judy presented evidence

that, after being in a romantic relationship and living with Douglas for several years, 

and after the couple was already engaged, Douglas propositioned Judy—“let’s be 

common law married”—and Judy agreed. If that conversation occurred as Judy 

described it, a factfinder could reasonably conclude given the circumstances of their 

relationship that the two had in fact agreed to be presently married at that time. 

Whether that conversation actually occurred, as Judy posits, and what the parties 

intended their relationship to be at that time cannot be resolved as a matter of law. 

Those are instead questions of fact that must be adjudged by a factfinder after 

hearing the relevant evidence. We therefore reverse the trial court’s grant of 

summary judgment and remand the case for a trial. 

 1 Judy Cleary’s legal name is Hyeon Ju Kim. Because she filed the lawsuit 

under the name Judy Cleary, we refer to her by that name in this opinion. For clarity, 

we refer to her and Douglas Cleary by their first names throughout this opinion. 
3

I. Factual and Procedural Background

We begin with Judy’s account of her relationship with Douglas and how, in 

her view, the parties came to be common law married on a particular date in 2019. 

Notably, Judy was proceeding pro se and the trial court treated her sworn pleadings

as evidence in the summary judgment record, without objection from Douglas, so 

we do likewise. Pajic v. Foote Props., LLC, 72 A.3d 140, 147 (D.C. 2013) (“[A] 

sworn complaint is tantamount to an affidavit and may therefore be sufficient to raise 

a genuine issue of fact.” (quoting Raskauskas v. Temple Realty Co., 589 A.2d 17, 26 

(D.C. 1991))).

According to Judy, she and Douglas were in a romantic relationship for about 

a year before they began living together in late 2016. Over time they discussed 

getting married, and on April 30, 2019, Douglas proposed to Judy. Douglas’s 

proposal came as a “complete shock” to Judy, and she initially suspected that he 

proposed to her so that she, a real estate agent, would help him buy another house

that he was expected to close on in the near future. Shortly after their engagement, 

Judy and Douglas spoke on the phone with Judy’s aunt and uncle and told them of 

the couple’s plan to get married in the coming months. While Judy maintained that 

the couple planned to marry before the upcoming July 1 closing on what she 

described as “their marital home,” they were also planning a subsequent celebration 
4

with friends and family—she described it as a post-marriage “surprise wedding 

party”—on September 28, 2019.

But in the days after their engagement, Judy was feeling ambivalent about 

marrying Douglas. She was concerned about what she described as his habitual

drinking, his continued child support and alimony payments stemming from a prior 

relationship, and his overall commitment to their relationship. According to Judy,

on May 9, 2019, Douglas overheard her telling her aunt on a phone call that she was 

going to call off the engagement and break up with Douglas. Douglas then

intervened to try to convince her to stay with him. Eventually, in an effort to 

convince Judy not to leave him, Douglas (in Judy’s telling) said “let’s be common 

law married,” and she replied “OK.” Judy then began using her marital name, 

Cleary, and Douglas “never objected.” Judy acknowledged that Douglas did not 

introduce her to friends or family as his wife. Eventually, the couple broke up on 

September 24, 2019, four-and-half months after Judy posits that they were married.

For his part, Douglas did not dispute that he was in a years-long romantic 

relationship with Judy, lived with her for two-and-a-half years, and that the pair 

became engaged in 2019 (he quibbled with the April 30 engagement date, positing 

that they were not engaged until July). But Douglas flatly denied that the couple 

ever became common law married, and instead maintained that they had merely
5

gotten engaged in the months before their September breakup. Douglas neither 

admitted nor denied that he and Judy had a conversation about their relationship on 

May 9, nor whether he ever spoke the words “let’s be common law married.” If the 

conversation happened, he did not offer any alternative account of what was said 

during it. 

Whether that conversation happened or not, Douglas insisted that the couple 

had only anticipated getting married at a later date, and he adduced a fair amount of

evidence that Judy herself did not consider the couple to be married in the months 

after the purported May 9 conversation. Specifically, he supplied a text message 

that Judy had sent to him in June 2019, in which she had drafted a message for 

Douglas to send to a realtor. In that draft message, Judy referred to herself as 

Douglas’s “girlfriend (soon to be fianc[ée]),” and inquired about how she might be 

added to a deed on a house that Douglas owned, given “the different title ownerships 

for unmarried couples.” Douglas also highlighted an email that Judy sent to a 

Tiffany & Co. employee in July 2019 in which she referred to a ring the couple had 

purchased as an “engagement ring.” 

After Judy and Douglas’s romantic relationship ended in September 2019,

Judy filed for legal separation, seeking spousal support and division of marital assets. 

Douglas responded that the pair was never married, and at the close of discovery,
6

Douglas moved for summary judgment. The trial court granted his motion, 

concluding that Judy had not offered evidence from which a reasonable factfinder 

could find any of the three requirements of a common law marriage, to wit: (1) that

the two had agreed in unambiguous words in the present tense to be married; (2) that 

they entered into that agreement with the same level of commitment as spouses in 

traditional marriages; and (3) that they had subsequently cohabitated together. Judy 

now appeals.

II. Analysis

We review rulings on motions for summary judgment de novo, considering 

the evidence in the light most favorable to the non-moving party and drawing all 

inferences in the non-moving party’s favor. Katz v. District of Columbia, 285 A.3d

1289, 1301 (D.C. 2022). We will affirm only “if, after conducting an independent 

review of the record, we conclude that there are no genuine issues of material fact 

and that the moving party is entitled to judgment as a matter of law.” Washington 

v. District of Columbia, 137 A.3d 170, 173 (D.C. 2016). Conversely, “we will 

reverse a grant of summary judgment if, but only if, the record would permit a 

reasonable fact-finder to properly render a verdict in the non-moving party’s favor.” 

Caesar v. Westchester Corporation, 280 A.3d 176, 184 (D.C. 2022) (internal 

quotation marks omitted). 
7 

The District is part of a shrinking minority of jurisdictions that recognize 

common law marriages at all; just nine states and the District still recognize common 

law marriages. Hogsett v. Neale, 478 P.3d 713, 720 & n.6 (Colo. 2021) (en banc) 

(listing Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode 

Island, Utah, and Texas, as the nine states). And among that shrinking minority the 

District takes a particularly lenient approach to how such a marriage can be formed, 

while at the same time we have explained that “claims of common law marriage 

should be closely scrutinized.” Coates v. Watts, 622 A.2d 25, 27 (D.C. 1993). 

In the District, a common law marriage is created by parties who 

“cohabitat[e]” as spouses “following an express mutual agreement, which must be 

in words of the present tense, to be permanent partners with the same degree of 

commitment as the spouses in a ceremonial marriage.” Gill v. Nostrand, 206 A.3d 

869, 875 (D.C. 2019). “Although there is no set formula required for the agreement, 

the exchange of words must inescapably and unambiguously impl[y] that an 

agreement was being entered into to become [spouses] as of the time of the mutual 

consent.” Coates, 622 A.2d 25 at 27 (internal quotation marks omitted). “An 

agreement ‘to be married at an unspecified future time . . . is insufficient to establish 

the existence of a common law marriage.’” Gill, 206 A.3d at 875 (quoting Coates, 

622 A.2d at 27). 
8

A couple need not publicly hold itself out as married to be common law 

married in the District, nor must the couple have a reputation in the community as 

being married; those considerations are mere evidence of whether they in fact had 

the required express mutual agreement to be married. See Gill, 206 A.3d at 875

(listing elements of common law marriage, with the “general reputation regarding 

the parties’ relationship” providing mere evidence of those elements). That stands 

in contrast to some other jurisdictions that treat holding out and reputation as married 

as firm requirements. See, e.g., In re Estate of Dallman, 228 N.W.2d 187, 190 (Iowa 

1975) (“‘[H]olding-out’ or open declaration to the public has been said to be the acid 

test [to prove a common law marriage].”). The express mutual agreement, with 

sufficient commitment plus cohabitation thereafter, is all that is required for a 

common law marriage in the District.2 Gill, 206 A.3d at 875.

Contrary to the trial court’s ruling, we conclude that Judy adduced evidence

that, if credited, could lead a reasonable factfinder to conclude that she and Douglas 

were common law married. If Douglas and Judy had the conversation that Judy 

 2 That might come as a surprise to some, and one could question the wisdom 

of the District’s approach to common law marriage. But as a division of this court, 

we are in no position to second guess it. See M.A.P. v. Ryan, 285 A.2d 310, 312 

(D.C. 1971) (“[N]o division of this court will overrule a prior decision of this court,” 

where overruling our precedents “can only be accomplished by this court en banc.”).
9

alleges they had on May 9, 2019, that conversation—in the surrounding context of 

their years-long romantic relationship—was sufficient to establish an (1) “express 

mutual agreement,” in “the present tense,” (2) “to be permanent partners with the 

same degree of commitment as the spouses in a ceremonial marriage.”3

 That leaves 

only the question of whether the couple (3) “cohabitated” thereafter, where the 

evidence was undisputed that the couple lived together for an additional four-and-ahalf months, until September 24, after their purported May 9 agreement. In the 

context of their relationship, that is sufficient evidence for a reasonable factfinder to 

conclude that they cohabitated. We now elaborate on each of these three points.

A. The Present-Tense Agreement to be Married

If Judy’s account were credited, it supplied evidence of a present-tense

agreement to be married. Judy represented that on May 9, Douglas told her “let’s 

be common law married,” and she answered “OK.” Those words are capable of 

“inescapably and unambiguously imply[ing] that an agreement was being entered 

into to become” spouses at that very moment. Gill, 206 A.3d at 875. When 

 3

 The trial court bifurcated the “express mutual agreement” inquiry into two 

parts: whether there was (1) an express mutual agreement to be partners (2) with the 

same commitment as those in a ceremonial marriage. That strikes us as a helpful 

way of breaking down the analysis here, so we follow suit. 
10

somebody says “let’s be married”—like when they say “let’s be going” or “let’s be 

rational”—that at least facially appears to be an entreaty to do something right then

and there.4

 While the context obviously matters a great deal, the context here

supports Judy’s claim that, in light of the parties’ years-long romantic relationship, 

their engagement, and Judy’s cold feet, that conversation was an agreement to seal 

the deal. So a reasonable factfinder could conclude that (1) Douglas’s “let’s be

common law married” stated his intention not to wait any longer and to presently 

cement their anticipated marriage, and (2) Judy’s agreement to that entreaty then 

manifested her mutual assent to that intention. While Douglas and Judy did not have 

any traditional ceremony at that point, or exchange any vows, there is no “set 

 4 “Let’s be married,” while quite the stilted phrase, is similar to a more familiar 

one: “let’s be friends.” Now, if a stranger walks up to you on the street and says 

“let’s be friends,” and you agree, it is far from clear that you become friends in that 

moment as opposed to having made a commitment to become friends over time. 

Similarly, if a long-term romantic partner sits you down and says, “let’s just be 

friends,” and you agree, that poses its own uncertainties as to whether you have 

become friends (though your romantic relationship seems to have come to an end). 

We can save such questions for the philosophers, because here we are concerned 

only with what a reasonable factfinder might conclude. And the relevant context is 

that Judy and Douglas were in a years-long romantic relationship, while living 

together, and in Judy’s telling the couple was already engaged to be married at the 

time of the May 9 conversation and Douglas was trying to dissuade her from calling 

the whole thing off. In that context, a reasonable factfinder could surely conclude 

that “let’s be common law married” manifested a concrete intention to solidify their 

marriage right then and there.
11

formula” for how parties must manifest their mutual assent to be married in the 

moment. Coates, 622 A.2d at 27. 

Consider East v. East, for example. 536 A.2d 1103 (D.C. 1988). In that case,

the trial court found that a man named Paul became common law married to his 

long-time partner, Margaret, when, “at a dinner party,” he purportedly declared: 

“From here on in, Margaret and I are married,” and the couple lived together 

thereafter. Id. at 1104. Paul denied making any such statement; he testified that 

Margaret told guests that they had been married “by a justice of the peace” earlier 

that day, and he did not correct that falsehood “to avoid the embarrassment of 

revealing that Margaret was lying.” Id. at 1104. But the trial court credited 

Margaret’s account of the conversation,5 and we upheld its determination that a 

common law marriage existed where Paul’s disputed declaration was in the present 

tense. Id. at 1106. In doing so, we explained that “[t]he best evidence of an express 

agreement [to be married] is the testimony of the parties,” and that when the parties 

disagree about what that agreement was, the case properly came down to “the trial 

 5 Our opinion in East did not say whether any of the untold number of guests 

at the dinner party testified—it appears not, because that would bear mentioning— 

nor does it specify how, exactly, Margaret apparently manifested her mutual assent 

to Paul’s declaration. 
12

court’s judgment as to the credibility of the witnesses.” Id. at 1106 & n.2 (internal 

quotation marks omitted). 

The lesson from East is that when two parties offer contradictory testimony 

about whether they expressly entered into a common law marriage, and about what 

words were spoken between them, that dispute will almost invariably come down to 

the respective credibility of the parties that must be assessed at a trial.6

 Vanishingly 

 6 There may be times when one party’s testimony will be “inherently 

incredible” in the sense that it could be “disproved as a matter of logic.” Slater-El 

v. United States, 142 A.3d 530, 539 (D.C. 2016) (internal quotation marks omitted) 

(describing the circumstances under which a court can find witness testimony 

inherently incredible); see also Stewart v. District of Columbia, 290 A.3d 937, 942-

43 (D.C. 2023) (per curiam) (describing the “rarely met standard” where one party’s 

testimony “is blatantly contradicted by the record, so that no reasonable jury could 

believe it,” for example by “a video tape that quite clearly demonstrates the falsity 

of a statement.” (cleaned up)). But Judy’s account was not inherently incredible, 

and Douglas had no smoking gun evidence that contradicted it. Douglas’s best 

evidence was probably (1) the text message in which Judy directed Douglas to send 

an email to a realtor asking about “the different title ownerships for unmarried 

couples” in June 2019, (2) the fact that he and Judy did not broadly hold themselves 

out as married after May 9, and (3) Judy’s July reference, in an email to Tiffany & 

Co., to an “engagement ring” they purchased. But if we draw all inferences in Judy’s 

favor, as we must at this stage, that evidence is easy enough to reconcile with Judy’s 

account: First, Judy knew that the couple did not yet have legal documentation 

memorializing their marriage in June 2019, so perhaps she simply wanted to get her 

name on the deed as though they were unmarried to avoid any dispute later on (so 

much for that). Second, perhaps Judy wanted to keep their marriage under wraps 

for a short period until they could celebrate it at the “surprise wedding party” later 

in the fall. Third, as Judy explained, the ring that Judy and Douglas had purchased 

from Tiffany & Co. was marketed as an engagement ring, as distinct from a wedding 
13

few cases are fit for summary judgment where one of the would-be married parties 

indicates they will testify to what is, on its face, a present-tense mutual agreement to 

be married.7 Summary judgment will typically be appropriate only when there is no 

evidence of such an agreement, or truly irrefutable evidence to the contrary. See, 

e.g., Yeh v. Hnath, 294 A.3d 1081, 1085-86 (D.C. 2023) (grant of summary 

 

band. And as discussed below in part II.B., Judy presented plenty of her own 

evidence that the parties were in fact married.

7 There is only one case where this court has upheld a grant of summary 

judgment despite one party’s willingness to testify to a present tense mutual 

agreement to be married plus subsequent cohabitation, and it points in Judy’s favor. 

In Coates, Coates testified that his (then-deceased) longtime partner asked him “to 

come live with her, and make our home together as long as we both shall live, until 

death do us part.” 622 A.2d at 26 n.1. We held that these, coupled with Coates’s 

agremeent, were indeed “words of present agreement” to be married, but nonetheless 

upheld a grant of summary judgment against Coates for the discrete legal reason that 

the words were “spoken at a time when Coates was already married” to somebody 

else. Id. We have since held that Coates’s legal analysis on that point was wrong, 

and that a present tense agreement to be married may be effectual even if some legal 

impediment precluded the marriage at the time, so long as the impediment is later 

lifted and the cohabitation continues. In re Estate of Jenkins, 290 A.3d 524, 531 

(D.C. 2023) (explaining that Coates contravened Thomas v. Murphy, 107 F.2d 268 

(D.C. Cir. 1939)). But that is neither here nor there for our purposes, where there 

was never any legal impediment to Judy marrying Douglas. Notably, but similarly 

irrelevant here, in Jenkins this court seemed to misdescribe the facts of Coates as a 

case in which Coates “had offered no evidence that he and [his paramour] ‘had ever 

agreed, in words in the present tense, to be married.’” 290 A.3d at 530 (quoting 

Coates, 622 A.2d at 26). Coates said the opposite: that Coates had introduced 

evidence of words of a present tense agreement to be married, though it was 

ineffectual because he was still married to another at the time, and he failed to adduce 

evidence of such an agreement “after his divorce,” i.e., “after [his] divorce removed 

the initial impediment” to their marriage. 622 A.2d at 26 & n.1. 
14

judgment, unchallenged on appeal, was based on fact that “Yeh had failed to present 

any evidence of an express, present-tense mutual agreement,” and had stated under 

oath in another case that “she did not consider herself married”). Because the trial 

court ruled as a matter of law without the benefit of hearing the parties’ testimony, 

it was not in a position to assess which of them testified more credibly regarding the 

purported May 9 conversation. 

In granting summary judgment for Douglas, the trial court seemed to fault 

Judy for failing to initially offer a verbatim account of their May 9 conversation, but 

she later cured any failing on that front. Prior to the court’s grant of summary 

judgment Judy had simply described how Douglas, on May 9, “declared the parties 

to be common law married from henceforth,” which the trial court opined fell short 

of specifying what Douglas “said to [her] that allegedly formed an express mutual 

agreement to be married.” Perhaps the court was right about that as a descriptive 

matter—Judy had not purported to quote Douglas’s exact words—but if that failure 

was a meaningful one, Judy remedied it in her motion for reconsideration. In that 

motion, she clarified that Douglas specifically said, verbatim and in quotation marks, 

“let’s be common law married.” The trial court ultimately considered that version 

of the conversation, and in denying Judy’s motion for reconsideration, it still found 

this verbatim account wanting, describing it as “no . . . evidence of any kind that the 

Court was not already aware of.” 
15

The trial court alternatively reasoned that, even if the May 9 conversation had 

taken place exactly as Judy had represented it, “the agreement was not mutual” 

because Douglas did not understand them to be married at the time. But Douglas’s 

ad hoc representations of what he understood at the time of that purported May 9 

conversation cannot be credited at face value, absent hearing his live testimony. It 

is not even clear if Douglas admits or denies that the May 9 conversation took place; 

he offers only the legally conclusory assertions that he and Judy “never formed a 

common-law marriage” because they “never cohabited following an express mutual 

agreement . . . to be permanent partners.” One party’s mere denial of an intent to be 

married cannot defeat, as a matter of law, the other party’s evidence that they did so 

intend, nor can their legally conclusory assertions that there was no marriage. 

Douglas’s assertions simply raise a credibility question that would need to be 

assessed at trial after hearing live testimony. East is again instructive. In that case, 

recall that Paul denied ever declaring himself to be married to Margaret. 536 A.2d 

at 1104. He flatly “denied making any such declaration,” id., so like Douglas in this 

case, Paul perforce likewise denied making such a declaration with an intent to be 

presently married. Nonetheless, this court held that Paul’s denials raised a question 

of credibility for the factfinder after hearing the respective parties’ live testimony. 

East compels the same conclusion here. 
16

B. With the Same Commitment as Spouses in a Ceremonial Marriage

Judy also presented evidence from which a factfinder could reasonably 

conclude that she and Douglas, per their May 9 conversation, intended “to be 

permanent partners with the same degree of commitment as the spouses in a 

ceremonial marriage.” Gill, 206 A.3d at 875. That is not so high a bar. Even

ceremonial marriages can be quite impetuous and ill-considered; for just $80 the 

Little White Wedding Chapel in Las Vegas offers drive-thru weddings in its “Tunnel 

of Love Ceremony.” www.alittlewhitechapel.com/shop/packages/drive-thru-95-5; 

https://perma.cc/X8BP-676D. The conversation Judy describes, in the context of 

her years-long romantic relationship and cohabitation with Douglas, would permit a 

reasonable factfinder to conclude that the pair had the same degree of commitment 

as spouses in a ceremonial marriage.

The trial court found to the contrary, stressing circumstantial evidence that 

belied such a commitment. For instance, the trial court stressed that Judy and 

Douglas kept separate bank accounts and generally lacked any serious “financial 

entanglement[s].” While that is surely some evidence that the parties did not have 

the requisite commitment, it is far from dispositive; it is not unusual for married 

couples to have separate bank accounts, especially when they are newly married.
17

The trial court also opined that Judy “produced no credible evidence” that she in fact 

held herself out as Judy Cleary.

But the trial court ignored circumstantial evidence supporting a finding that 

Judy and Douglas had longstanding entanglements and other features of a deeply 

committed couple. For example, Judy claims that the pair did have financial 

entanglements, in the form of a joint financial venture: Judo Investments LLC (with 

Judo serving as a portmanteau for Judy and Douglas). While it appears that Douglas 

set that company up as a sole proprietorship in his own name, Douglas had done that 

in secret, without Judy’s knowledge, in her telling. Judy also registered the email 

address for that joint venture—with the handle “judocleary”—from which she 

corresponded with contractors, and which she continues to use. One of those 

contractors sent an email to that address in July 2019 which discussed “cases where 

there are two homeowners such as yourself and your husband Douglas Cleary.” And 

Douglas himself, in another July 2019 email to the manager of a condo association 

in which he owned a property, wrote that “[i]n regards to Judy and the legal record 

of ownership, she has my full permission to communicate on my behalf. . . . Judy 

has ownership interests that are our private business.” (emphasis added). 

The trial court also did not account for the evidence that Judy and Douglas did 

in fact hold themselves out as married. Judy presented documentary evidence not 
18

only that she used the Cleary surname in the months after her purported marriage to 

Douglas, but that others likewise called her by that surname. Such evidence included 

the aforementioned email from the contractor, which was addressed to “Judy 

Cleary,” an August 2019 home improvement estimate from the same contractor 

prepared for “Judy Cleary,” and a letter from the condo board of their rental property 

mailed to “Douglas & Judy Cleary” and which opened by addressing “Mr. and Mrs. 

Cleary.” And regardless of this evidence, Judy’s own proffered testimony that she 

went by Cleary and held herself out as Douglas’s wife could not be so easily brushed

aside. “At the summary judgment stage, the trial court does not make credibility 

determinations or weigh the evidence.” Katz, 285 A.3d at 1301. 

And as we have already stressed, “the best evidence” of whether the parties 

had the requisite commitment to form a common law marriage “is the testimony of 

the parties” themselves. East, 536 A.2d at 1006 n.2 (internal quotation marks 

omitted). This was effectively a swearing contest between Judy and Douglas, and 

East instructs trial courts to look to the parties’ testimony first and foremost. Id. 

Judy sufficiently previewed testimony for the court that she and Douglas had the 

requisite commitment to be married at the time of their May 9 conversation;

Douglas’s bare denials cannot defeat the evidence in Judy’s favor on summary 

judgment. Judy indicated that she would testify that she and Douglas had been 

discussing getting married for an extended period of time. She claimed Douglas
19

then, post-engagement, overheard her talking to her aunt and saying she was thinking 

of leaving him, and that the two then discussed “ending their engagement and 

breaking up” across the rest of the day, with Douglas eventually proposing to marry 

her right then “to convince her not to break up” with him. If a factfinder had credited 

her testimony after hearing Judy and Douglas testify under oath, a reasonable 

factfinder could conclude that they in fact had the requisite commitment to be 

married.

C. Cohabitation After the Agreement to Marry

We also disagree with the trial court that Judy and Douglas’s four-and-a-half 

months of cohabitation following their alleged marriage agreement was insufficient 

to establish the cohabitation requirement of a common law marriage. While that 

cohabitation was surely briefer than that in most marriages, when coupled with the 

years they had lived together beforehand, it was more than sufficient to satisfy the 

cohabitation prong when interpreting the facts in the light most favorable to Judy. 

This court has never clearly defined what it means to cohabitate in the context 

of a common law marriage. Dictionary definitions do not shed much light on the 

subject, as they tend to collapse this third requirement into the first two, asking 

whether the parties lived together in an arrangement that mirrors that of spouses. 

They define “cohabit” as meaning “to live together as or as if as husband and wife,” 
20

Webster’s Third New International Dictionary 440 (2020), and “cohabitate” as the 

“fact, state, or condition of living together, esp[ecially] as partners in life, usu[ally] 

with the suggestion of sexual relations,” Black’s Law Dictionary 316 (10th ed. 

2014). Common law definitions from other jurisdictions use roughly the same 

concepts to define cohabitation as living together as, or as if, spouses.8

Under any of those definitions, Judy supplied evidence that, if credited, she 

and Douglas cohabitated after they purportedly agreed to be married on May 9. As 

the trial court explained, it was undisputed that the parties lived together from 

roughly December 2016 through September 2019, and the parties had an “intimate 

 8

 The Supreme Court of New Hampshire, in In re Raybeck, 44 A.3d 551, 

554-55 (N.H. 2012), provides this helpful representative sample of authorities as 

examples, albeit in the different context of assessing when alimony can be modified 

on the basis of cohabitation with another by the recipient spouse: State v. Arroyo,

435 A.2d 967, 970 (Conn. 1980) (“[Cohabitation] is the mutual assumption of those 

marital rights, duties and obligations which are usually manifested by married 

people, including but not necessarily dependent on sexual relations.”); Cook v. Cook,

798 S.W.2d 955, 957 (Ky. 1990) (cohabitation is “mutually assum[ing] the duties 

and obligations normally assumed by married persons”); Fisher v. Fisher, 540 A.2d 

1165, 1169 (Md. Ct. Spec. App. 1988) (cohabitation “envisions at least the normally 

accepted attributes of a marriage”); Frey v. Frey, 416 S.E.2d 40, 43 (Va. Ct. App. 

1992) (cohabitation “has been consistently interpreted by courts as encompassing 

both a permanency or continuity element and an assumption of marital duties”); 27B 

C.J.S. Divorce § 656, at 334 (2005) (“Generally,” “cohabitation is an arrangement 

in which the couple reside together on a continuing conjugal basis or hold 

themselves out as man and wife,” adding that the “court must look to whether the 

parties have assumed obligations, including support, equivalent to those arising from 

a ceremonial marriage”).
21

involvement” throughout that time. And for reasons we have largely articulated in 

the previous two subparts of this opinion, a reasonable factfinder could conclude that 

when they continued living together after May 9, they were living “as if as husband 

and wife.” Webster’s Third, supra, at 440.

In reaching its contrary conclusion, the trial court stressed that Judy and 

Douglas in fact only lived together for four-and-a-half months after the purported 

May 9 agreement, which the trial court likened to “sharing bed and board for a brief 

period.” While that severely understates the undisputed nature of Judy and 

Douglas’s years of living together as a couple, even that four-and-a-half month

timeframe by itself would likely permit a reasonable factfinder to conclude that the 

pair cohabitated during that stretch. See Bansda v. Wheeler, 995 A.2d 189, 198 

(D.C. 2010) (describing four months of living together as “cohabitation,” albeit 

insufficient of itself to establish a common law marriage absent the “express mutual 

agreement” discussed in Part II.A above). Marriages can of course be short-lived, 

and under no reading of the evidence were Judy and Douglas mere roommates. 

Moreover, the trial court was too narrowly focused on the post-May 9

timeframe alone when assessing the cohabitation question. The fact that Judy and 

Douglas had lived together for years prior to that—even if they were not cohabitating

as spouses during that stretch of years—was highly relevant to whether they 
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cohabitated after May 9, but the trial court seemed to discount that fact entirely. For 

instance, imagine that you lived with a romantic partner for fifty years, up until New 

Years Day of 2024, before you unexpectedly parted ways in old age. If somebody 

asked you whether you cohabitated with your partner after mid-August 2023, that 

would pose an easy question: Of course you did. You cohabitated for an additional 

four-and-a-half months thereafter. The cohabitation question might be quite a bit 

harder if somebody asked you if you cohabitated during the first four-and-a-half 

months of living together, dating back to 1974, when your relationship was still 

nascent. That is essentially how the trial court, mistakenly in our view, analyzed the 

cohabitation question here without accounting for Judy and Douglas’s longstanding 

arrangement of living together.

Finally, the trial court placed undue emphasis on the fact that Judy and 

Douglas spent most of the post-May 9 period living in a home that Douglas owned 

in his own name and another stretch of it living in a friend’s house while Douglas’s 

house underwent renovations. We simply do not find those facts particularly 

relevant. Married couples often live in a house titled in only one spouse’s name, 

particularly when that spouse owned the home prior to their marriage. See, e.g.,

Bansda, 995 A.2d at 193 (describing married couple who lived in house that was 

titled solely in husband’s name before their marriage); Macklin v. Johnson, 268 A.3d 

1273, 1277 (D.C. 2022) (same). And it is likewise not unusual for even married 
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couples to temporarily live with friends during extenuating circumstances, such as 

when their home is undergoing renovations. 

* * *

At bottom, Judy presented evidence on all three of the requirements of a 

common law marriage that would permit a reasonable factfinder to conclude that she 

and Douglas were common law married after May 9. That evidence raises intensely 

factual questions that simply cannot be resolved as a matter of law, but are 

inextricably bound up with the credibility of Judy’s and Douglas’s competing 

accounts, which must be vetted by a factfinder after a trial. 

III. Conclusion

For the foregoing reasons, we reverse the trial court’s grant of summary 

judgment and remand for a trial.

So ordered.