Can You Get Divorced in Florida Under a Common-Law Marriage?

By Michael Butler

In nine states and Washington D.C., under certain circumstances, you might have a common-law marriage. If you do, it is treated by the state of Florida the same as any other marriage. You can therefore get a divorce, which in Florida is called a dissolution. Whether you can get a divorce in Florida depends on where you believe you were married under common law.

Common-Law Marriage

Before states began codifying their marriage statutes, people could get married in several ways. One way was called a common-law marriage. Generally, the couple must have lived together, agreed to be married and told other people that they were married. In the United States today, only nine states recognize common-law marriages: Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma and Texas. The rules for a valid common-law marriage vary between states. Five other states recognize common-law marriages that were granted before specific statutory dates.

Common-Law Marriage in Florida

Florida abolished common-law marriage in 1968 and does not currently recognize prior common-law marriages. So if you believe that you were married under the common law in Florida, you are mistaken. If you are separating from a long-time partner and need to resolve custody and property disputes, you still can without getting a divorce. Florida, like all states, has other statutory provisions that you can use, such as paternity provisions.

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Florida Dissolution

If you had a valid common-law marriage in another state, and you have since moved to Florida, you can get a divorce in Florida. Under the full faith and credit clause of the United States Constitution, Florida must recognize valid marriages in other states. You will need to prove to the Florida court that your common-law marriage was valid in the state in which it occurred. In determining the validity of the marriage, the Florida court will apply the law of the other state.

Proof of Common-Law Marriage

If both parties agree that they were married under the common law, courts will generally accept the marriage as a fact because courts normally only decide facts that the parties dispute. However, if one of the parties does not agree that the marriage was valid, the party asserting its validity must prove by a preponderance of the evidence that it was. The best evidence is a government document, such as a joint tax return or other sworn declaration to a government agency. Other evidence can include witnesses, proof of cohabitation and other signed documents.

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