Common Law Divorces in California

By Heather Frances J.D.

There is no such thing as common law divorce, so California law does not consider you divorced if you are legally married but attempt to divorce by simply separating and saying you are divorced. In fact, California recognizes neither common law marriage, in which a couple becomes married by living together and saying they are married but never formally marrying, nor common law divorce, in which a couple might simply split up without obtaining a divorce through the legal system.

There is no such thing as common law divorce, so California law does not consider you divorced if you are legally married but attempt to divorce by simply separating and saying you are divorced. In fact, California recognizes neither common law marriage, in which a couple becomes married by living together and saying they are married but never formally marrying, nor common law divorce, in which a couple might simply split up without obtaining a divorce through the legal system.

California Marriage

Like the majority of states, California does not allow its residents to contract common law marriages. No matter how long you live together or how often you tell others you are married, California does not recognize you as married unless you first obtain a marriage license from a California county clerk and are married in front of at least one witness by someone authorized to perform marriages.

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Common Law Marriage

Though California does not permit common law marriage, it does recognize the validity of common law marriages created in other states. Historically, common law marriage developed before modern marriage laws, often in isolated places where it was difficult for couples to travel to a judge or pastor to solemnize their marriage. Only nine states recognize common law marriage: Alabama, Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina and Texas. If you have a valid common law marriage in one of these states and then move to California, California recognizes the marriage; thus, you are eligible to get a legal divorce in California.

California Divorce

There is no such thing as common law divorce, but California courts grant divorces, called a dissolution of marriage. The only recognized grounds for divorce in California are irreconcilable differences that have caused a permanent breakdown of the marriage and incurable insanity. Traditional fault-based grounds for divorce, such as adultery or cruelty, do not exist in California. In your divorce, the court has authority to divide your marital property, determine child custody arrangements and order payments of child support and spousal support.

Palimony

California recognizes limited “palimony” rights when unmarried partners split. If you never married, and are thus unable to divorce, a California court may nonetheless enforce promises your partner made about what would happen if you split. For example, if your partner promised you half of the house, even though it is completely in his name, the court may enforce that promise, particularly if you lived together for a long period of time and both made contributions to the house.

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If We Divorce & Then Live Together for 3 Months, Are We Considered Married By Common Law in Alabama?

References

Related articles

Does Colorado Recognize Common Law Marriages?

Colorado is only one of a handful of states that recognizes common law marriage. However, couples need to do more than simply say they are married if they want the state to recognize the validity of their union. They must act as if they are married, for example, by living together, sharing the same surname and filing joint taxes. Once the state recognizes a couple's common law marriage, the couple can only terminate it by divorce -- just like any other marriage.

Iowa Laws on Common Law Divorce

Although it's not heard of often, common law marriage is still recognized in a handful of states, including Iowa. However, entering into a common law marriage is not as simple as "shacking up." Couples must exhibit additional characteristics, like holding themselves out to the public as married. Once their marriages are found valid under Iowa law, common law spouses can only end such relationships through divorce.

Common Law: Separation Agreement

If your marriage is legally recognized as a common law marriage by your state, you can terminate it only through divorce. If you're not ready for divorce, you can instead choose legal separation if your state provides this option. With either separation or divorce, you have the option of drafting a separation agreement, also known as a marital settlement agreement, with your spouse. In this agreement, you and your spouse will outline your agreed-upon arrangement for property division, alimony and custody.

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