Common Law Marriages & Divorce

by Beverly Bird
A common law marriage is one that does not begin with a legal ceremony.

A common law marriage is one that does not begin with a legal ceremony.

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The phrase "common law" refers to the way you get married, not how you end your union. The term simply means that you didn't solemnize your marriage vows or file a marriage certificate with your state. In all other ways, including divorce, a common law marriage and a "regular" marriage are treated the same.

State Laws

Although all states will divorce common law spouses, only 10 jurisdictions allow you to begin a common law marriage, and to formally recognize such unions. These include Texas, Montana, South Carolina, Kansas, Colorado, Alabama, Rhode Island, Iowa, Oklahoma and the District of Columbia. If you enter into a common law marriage in any of these jurisdictions, the U.S. Constitution requires that all other states recognize your union. For example, if you marry in Montana, you can be divorced in New Jersey, even though you can't enter into a common law marriage there. An additional five states recognize common law marriages entered into before a statutory date. Georgia recognizes those formed before January 1, 1997, and in Pennsylvania, the pivotal date is January 1, 2005. In these jurisdictions, if you enter into a common law marriage arrangement after these dates, you're not considered married – you're just living together.

Requirements

You can't accidentally or inadvertently form a common law marriage, even if you live in a state that recognizes such unions. These arrangements involve taking deliberate actions to establish that you're married, even without a license. You and your spouse must live together, and you must agree that you're married. You must "hold out" to the public that you're a married couple – you introduce your partner to others as your spouse, use the same surname, and habitually take other actions that couples who are formally married also take. This might include filing joint tax returns, covering each other on insurance policies, buying property together, holding financial accounts together, or having children together. By themselves, these actions don't make you married under common law – unless you also tell people that you're a married couple. People who simply live together aren't common-law married, even if they intend to marry sometime in the future. If no one knows you're married because you've never publicly said so, you don't have a common law union.

Burden of Proof

The first step in legally ending a common law marriage is to establish to the court that the marriage exists in the first place. If both spouses agree that they made a marital commitment to each other, this isn't much of a hurdle. If one spouse denies that a common law marriage exists, however, the other has the burden of proof to establish to the court that it does. You can do this by offering documented proof, such as copies of tax returns, insurance policies and loan commitments, but these alone don't establish a common law marriage. You may also need third-party witnesses who can establish that you held yourselves out to the public as husband and wife. Ultimately, a judge must determine whether a marriage actually exists. How you end your partnership depends on his opinion.

The Divorce Procedure

If the court determines that you do have a common law marriage, divorce is the same as it is for couples who took out a marriage license and exchanged vows. Similar issues are decided, and there is no difference in procedure. A complaint or petition initiates the legal action. Issues of property, joint debts, custody and support are decided either by court order after a trial or by agreement between spouses. The court ultimately enters a divorce judgment or decree, ending your union. If a judge determines you aren't married by common law, you can't divorce in family court. You must typically resolve property issues through civil court, although family court can still make rulings on custody and child support for unmarried couples.