Common Law Divorce in Alabama

By Heather Frances J.D.

Alabama is among the few states that recognize common law marriage, but there are many misconceptions about what creates and ends a common law marriage. Just as simply living together doesn't create a common law marriage, dissolving a common law marriage isn’t as simple as just moving out. In Alabama, a common law marriage can only be ended by a court-ordered divorce.

Alabama is among the few states that recognize common law marriage, but there are many misconceptions about what creates and ends a common law marriage. Just as simply living together doesn't create a common law marriage, dissolving a common law marriage isn’t as simple as just moving out. In Alabama, a common law marriage can only be ended by a court-ordered divorce.

Common Law Marriage

Alabama has three requirements to create a common law marriage. First, the couple must have the capacity to marry, meaning that both are of legal age and mentally competent to marry. Second, the couple must intend to be married. Third, the couple must represent themselves to friends, family and the community as a married couple. Simply living together does not create a common law marriage unless all three of these requirements are met.

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Proving Common Law Marriage

Before a cohabitating couple can obtain a divorce, their common law marriage must be legally recognized. To prove common law marriage, you must present enough evidence for the court to determine that all three factors exist. For example, the court may consider whether you filed joint tax returns, shared bank accounts and expenses, and other mutual obligations while you were living together. You may also need to call witnesses from your family and friends to prove that you represented yourselves as married.

Divorce

If the court finds that you did have a common law marriage under Alabama law, it has authority to order a divorce for you and your spouse. Alabama does not recognize common law divorce, which means that a couple married by common law or formal marriage cannot get a divorce simply by announcing they are divorced, even if they represent themselves to others as divorced and begin to live separately. All married couples, common law and non-common law must obtain legally recognized divorces from the court.

Terms of Divorce

When common law spouses obtain a court-ordered divorce in Alabama, the court addresses the same topics as with couples who are formally married. These may include child custody, child support, property division and spousal support. The process for both types of couples to obtain a divorce is the same except that a common law couple will have to prove their marriage to the court before they can obtain a formal divorce.

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References

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