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.

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.

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.

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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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Common Law Divorce in Alabama
 

References

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How to Obtain a Divorce Decree From California

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Iowa Laws on Common Law Divorce

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Annulment Fraud & California Law

Not all marriages are valid in California. If one spouse uses fraud to induce the other to marry, an annulment may be granted by the court. Annulments have the effect of restoring the parties to a position as if the marriage never occurred. However, due to the availability of divorces, annulments are applicable only in limited circumstances and require more proof than is typically needed to dissolve a marriage.

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