Common-Law Marriage: Divorce Possibility?

Common-law marriages differ from traditional marriages in that there is no license obtained before marriage. However, when it comes to ending a common-law marriage, the process of obtaining a divorce is similar to that of a formal marital union. In the US, once a lawful common-law marriage is created, it can only be dissolved by a legal divorce. While the grounds for divorce in a common-law marriage are the same as in a formal marriage, proving a common-law marriage can be challenging due to the lack of official documents. This article will explore the complexities of ending a common-law marriage and provide valuable insights for individuals navigating this unique legal terrain.

Characteristics of ending a common-law marriage in divorce

Proving a common-law marriage

A common-law marriage, also known as a marriage without formalities or an informal marriage, is a valid and legal way for a couple to marry without a marriage license or certificate. Common-law marriages are currently recognised in seven states and the District of Columbia, with each state having its own rules for what constitutes a common-law marriage.

To prove a common-law marriage, couples must generally satisfy the same requirements as those for a formal marriage in their state. For example, in most states, both spouses must be at least 18 years old and be mentally capable of understanding the commitment and consequences of marriage. They must also not be married to anyone else at the time, either informally or formally.

In addition, couples must prove that they both intended to be married and that they lived together and held themselves out in public as a married couple. This can be done through various documents, such as affidavits, lease agreements, tax returns, insurance policies, and property deeds. Personal affidavits can include details such as the date and location where the couple mutually agreed to become spouses, while friend and family affidavits can be provided by those familiar with the relationship to support the claim.

It is important to note that the specific evidence required to prove a common-law marriage may vary depending on the state, and same-sex couples may face additional challenges due to historical discrimination and legal restrictions. For example, in Texas, there is a two-year statute of limitations for court proceedings to prove a common-law marriage after a separation. If no action is taken within this time frame, it is presumed that the couple never intended to be married, and it becomes more difficult to prove the existence of a common-law marriage.

Grounds for divorce

In the United States, common-law marriages are granted the same status as formal marriages. Therefore, common-law marriages must be terminated through a legal divorce. The grounds for divorce in a common-law marriage are similar to those in a traditional marriage.

One of the most common grounds for divorce in any marriage is a no-fault divorce, which indicates that the marriage ended due to irreconcilable differences or incompatible temperaments between the spouses. This occurs without blaming either spouse and is more common than a fault divorce as it is often more convenient, less expensive, and causes less strain on families with children. In the case of a no-fault divorce, one member of the couple must acknowledge that the marriage is beyond repair.

The specific grounds for a fault divorce vary by state, but some common examples include adultery, cruelty, and abandonment. Adultery must be proven by the filing party through circumstantial or documented evidence, and the accusing partner must also demonstrate that the other partner had the opportunity and inclination to commit adultery. Cruelty must be deliberate, recurrent, and make the marriage intolerable for the filing spouse, and it can include physical attacks, violent behaviour, and continuous false accusations. Abandonment, on the other hand, can be more complex, as leaving the household with the consent of the filing spouse or for positive reasons, such as employment, does not constitute abandonment. However, refusing to have sexual relations with a spouse can be considered abandonment in some cases.

In addition to these grounds, other factors such as the distribution of assets and liabilities, alimony, and child support may also come into play during the divorce process. It is important to note that proving a common-law marriage can be challenging due to the lack of official documents, so seeking legal advice from a qualified family law attorney is recommended.

Division of assets and liabilities

Ending a common-law marriage through divorce can be a complex process, requiring proof of the marriage's existence. One of the challenges is the dispute over the marriage's existence, as a partner may deny it to avoid obligations like alimony or property division. However, evidence such as joint tax returns, insurance policies, or shared property can be presented to establish the marriage.

When it comes to the division of assets and liabilities in a common-law marriage divorce, it is similar to traditional marriages. Common-law couples accumulate assets and liabilities during their union, and these must be distributed equitably during the divorce process. This typically involves a thorough evaluation of jointly held properties, shared debts, and other financial elements. The division can be agreed upon by both parties, or if they cannot reach an agreement, the court will decide on their behalf.

The division of assets and liabilities in a divorce has long-term consequences and can be complicated, especially with high-value assets or significant debt. It is crucial to understand the difference between separate and community property. Separate property refers to what each individual owns or owes separately, including assets brought into the marriage, gifts, inheritances, and assets acquired after separation. On the other hand, community property includes what the couple owns or owes together during the marriage, such as real estate, financial assets, personal property, and debts.

In some states, like California, the law distinguishes between separate and community property. Generally, each spouse keeps their separate property and splits the community property. However, student debt is usually treated as the separate property of the spouse who incurred it, and retirement plans or pension plans are often divided based on contributions made during the marriage. Additionally, marital debts are typically divided equally between the spouses.

The division of assets and liabilities in a common-law marriage divorce can vary depending on the state and the specific circumstances of the couple. It is always advisable to seek legal guidance from experienced divorce lawyers, especially when navigating complex financial situations. They can help protect their clients' best interests and ensure fair treatment under the applicable state laws.

Alimony and child support

Alimony, also known as spousal support, is a financial arrangement where one party provides regular payments to the other to support them financially as part of a divorce settlement or separation. The purpose of alimony is to ensure that the divorcing spouses maintain the same standard of living as they did during their marriage. Courts typically award alimony to the lower-earning spouse on a case-by-case basis. Alimony awards are separate from property division and child support. The amount and duration of alimony payments depend on various factors, including the length of the marriage, the financial needs and abilities of both spouses, their ages, health, and earning abilities. Alimony can be awarded as a lump sum or periodic payments, and it usually terminates upon the death or remarriage of the receiving spouse.

Child support, on the other hand, is financial support provided by the non-custodial parent to the custodial parent to ensure the child's basic needs are met, including food, shelter, clothing, education, and medical care. Child support is typically mandated according to specific guidelines, while alimony is more flexible and determined by the court on a case-by-case basis. Child support usually continues until the child reaches adulthood or completes their education, depending on state laws.

In the context of common-law marriage, the process of obtaining a divorce is similar to that of a formal marriage. However, one unique challenge in common-law divorce is disputing the existence of the marriage. To avoid obligations like alimony or property division, a partner may deny the existence of the common-law marriage. The other spouse can present evidence such as joint tax returns, insurance policies, or shared property to prove the marriage's existence. Therefore, it is crucial to seek legal assistance when navigating a common-law divorce to ensure that your rights are protected and that you receive fair financial support, whether through alimony or child support.

Finalization of the divorce

The finalization of a divorce marks the legal end of a marriage. In the context of common-law marriages, finalizing a divorce involves navigating unique challenges due to the absence of traditional matrimonial records. Here are the key aspects of finalizing a divorce in a common-law marriage:

• Proving the Existence of Common-Law Marriage: One of the critical steps in ending a common-law marriage is establishing its existence. This can be challenging since common-law marriages lack official documentation. To prove the marriage, evidence such as joint tax returns, insurance policies, shared property, or other indications of a mutual understanding of a permanent union can be presented.
• Distribution of Assets and Liabilities: Similar to traditional marriages, common-law couples accumulate assets and liabilities during their union. During the divorce process, these must be distributed equitably. This may involve evaluating jointly held properties, shared debts, and other financial matters. Both parties can agree upon a division, or the court will decide on their behalf if an agreement cannot be reached.
• Alimony and Child Support: Depending on the circumstances, one party may be required to pay alimony or spousal support to the other. If children are involved, child support may also be mandated, with the primary caregiver potentially receiving support from the other parent.
• Court Review and Approval: Before a divorce can be finalized, the court must review and approve all aspects of the divorce, including property division, alimony, and child custody arrangements. This comprehensive review ensures that all relevant considerations have been addressed.
• Judgment of Divorce: Once the court has approved all aspects of the divorce, a judgment of divorce will be granted. This judgment formally and legally ends the common-law marriage, allowing both parties to move forward with their lives.
• Time Considerations: The time it takes to finalize a divorce can vary depending on the complexity of the case, the cooperation between the parties, and the workload of the court. In some cases, especially those involving complex financial arrangements or disputes, the process may take longer.

It is important to note that the specific requirements and procedures for finalizing a divorce may vary depending on the jurisdiction. Consulting with a qualified family law attorney is essential to ensure that all relevant legal considerations are addressed during the divorce process.

Frequently asked questions