Common Law Marriages & Divorce

By Beverly Bird

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.

Divorce is never easy, but we can help. Learn More

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.

Divorce is never easy, but we can help. Learn More
If We Divorce & Then Live Together for 3 Months, Are We Considered Married By Common Law in Alabama?
 

References

Related articles

Do I Need a Final Divorce Decree to Remarry in New Hampshire?

It’s not legal to remarry before your divorce is final and New Hampshire won’t take your word that your previous marriage has ended. Marriage licenses are available from any town or city clerk in the state and you can’t marry without one. The clerk will require proof of your divorce before issuing you a license. You can’t bend the rules, at least not without risking criminal prosecution.

How to Separate From a Common-Law Partner

Breaking up is hard to do, as hard for common-law partners as for those married in a church. The common law allowed two people to declare themselves married without the help of court or clergy. A few states still recognize these unions as legal marriages and allow such couples to divorce. Most states do not, however, and common-law couples either tailor individual separation agreements or battle it out in the courts.

Common Law Divorce & Kansas Custody Rules

When we think of marriage, we often picture a ceremony presided over by a judge or clergyman before family and friends. However, some states still recognize marriages that are not formed in this manner, but rather arise from a couple living together and holding themselves out to the public as married. Such relationships are known as common law marriages, and Kansas is one of the few remaining states that still recognize them. In Kansas, common law spouses are subject to the same divorce and custody rules as traditionally married couples.

Get Divorced Online

Related articles

How to File for a Common Law Divorce in Oklahoma

Only a handful of states unequivocally recognize common law marriage – nine, to be exact, plus the District of ...

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 ...

How to File for Common Law Divorce in Texas

Texas is one of only a few states that recognize common law marriage, a union entered into without a ceremony or ...

Grounds for Divorce in Fayetteville, North Carolina

Divorce in North Carolina is governed by state law. Whether you are in Fayetteville, Durham or Ashville, the grounds ...

Browse by category
Ready to Begin? GET STARTED