Anaya Nolan
Common-law marriage, which traces its roots to old English law, is only recognized in a few U.S. states. It is a form of informal marriage where couples live together as life partners without a wedding ceremony or marriage license but consider themselves married. While there is no such thing as a common-law divorce, a common-law marriage is legally recognized, and it typically ends through a traditional divorce process or the death of a spouse. In states that recognize common-law marriage, property division during divorce follows the same rules as in formal marriages, but there may be more complexity and fewer protections in place for common-law couples.
| Characteristics | Values |
|---|---|
| Number of states that recognize common-law marriage | 8 (Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah) |
| States that recognize common-law marriages formed before abolition | 6 (Alabama, Florida, Georgia, Indiana, Ohio, and Pennsylvania) |
| States that have upheld common-law marriages in case law | 2 (Oklahoma and Rhode Island) |
| States that require a written statement of intention to be married | Not specified |
| States that require a written statement of intention not to be married | Not specified |
| States that require couples to file taxes separately to prevent a common-law designation | Not specified |
| States that follow the community property system | 9 (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) |
| States that have elective community property laws | 3 (Alaska, South Dakota, and Tennessee) |
| States that follow the equitable distribution system | All other states |
| States that require a specific period of cohabitation for common-law marriage | Not specified |
| States that require a marriage certificate to prove marital status | Not specified |
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What You'll Learn
Common-law marriage requirements vary by state
The requirements for common-law marriage vary across the United States. Common-law marriage is an informal marriage that is legally recognised in some states as a formal marriage. This means that couples who have not had a wedding ceremony or obtained a marriage license, but live together and view themselves as married, are considered legally married.
To be in a common-law marriage in one of the states that recognises it, couples must meet certain criteria that demonstrate a mutual intention to be a permanent married couple. This includes basic requirements such as being of legal age and sound mind, and not already being married. While it is not the number of years spent living together that defines a common-law marriage, intent can be demonstrated through actions such as cohabitation, presenting as spouses in public, and filing a joint tax return.
Legal experts recommend that couples intending to be in a common-law marriage write, sign, and date a statement of their intention to be married. Conversely, couples who do not want to be considered common-law married can also write and sign a statement to that effect.
Eight states currently recognise common-law marriage: Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. Another six states—Alabama, Florida, Georgia, Indiana, Ohio, and Pennsylvania—recognise common-law marriages formed before the state abolished them. In addition, case law has upheld common-law marriages in Oklahoma and Rhode Island.
In states that do not recognise common-law marriage, a couple may still be considered legally married if they move there from a state that does recognise common-law marriage. For example, a couple in a common-law marriage in Colorado who move to California, which does not have common-law marriage, will still be recognised as legally married in California.
In terms of the financial implications of common-law marriage, in states that recognise common-law marriage, property is divided in the same way as it would be for a formally married couple seeking a divorce. There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In these states, all assets and debts acquired during marriage are considered joint property and will be divided equally if the couple divorces. All other states follow the equitable distribution system, in which assets and earnings accumulated during marriage are divided fairly, though not necessarily equally.
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Common-law marriages are legally recognised
The requirements for a common-law marriage to be recognised vary by state. In Texas, for example, a common-law marriage may be proved by evidence that the couple lives together (cohabitation) for a certain amount of time (one year in most states), presents themselves to the public as spouses, and files a joint tax return. Legal experts recommend that couples intending to be in a common-law marriage write, sign, and date a statement of their intention to be married.
In states that recognise common-law marriages, couples are treated the same as formally married couples in terms of property division and spousal benefits. This means that if a common-law couple decides to split up, they must go through a formal divorce process, and their property will be divided the same way as it would be for a formally married couple. There is no such thing as a "common-law divorce".
During the divorce process, spouses should open separate bank accounts for their paychecks and other income. While a joint account may remain open to pay joint expenses, each spouse should transfer money into the joint account as needed, rather than taking money out without the other spouse's approval. Spouses may also need to decide on a temporary support agreement, which can include spousal support, child support, or both, during the divorce process.
It is important to note that the laws and procedures surrounding common-law marriages can vary by state, and it is recommended to consult with an attorney or legal practitioner to understand the specific laws and protections in your state.
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Common-law divorce is treated like a traditional divorce
Common-law marriages are legally recognised in certain states, though they do not require a marriage license or ceremony. They are formed when a couple meets certain criteria that demonstrate mutual intent to be a permanent married couple. This includes cohabitation, presenting as spouses in public, and filing joint tax returns.
When it comes to divorce, a common-law marriage is treated like a traditional marriage. Couples must file for divorce in a court of law and address issues such as property division, spousal support, child custody, and child support. However, before diving into the divorce process, the couple must first establish the validity of their common-law marriage in court. This involves presenting evidence of cohabitation, intention to live as a married couple, and publicly presenting themselves as such.
The primary difference between a traditional divorce and a common-law divorce is that a couple married by common law may first need to prove that they had a valid marriage under state law. This is because common-law marriages are less easily defined and can lead to disputes over the marriage's existence. As such, it is recommended that couples intending to be in a common-law marriage write, sign, and date a statement of their intentions.
In terms of property division, if the couple lives in a community property state, assets and debts will be divided equally. These states include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In all other states, assets and debts will be divided fairly, though not necessarily equally.
It is important to note that the requirements for ending a common-law marriage vary from state to state. For example, in Texas, if a couple does not file for divorce within two years of separation, the state presumes the common-law marriage never existed. Therefore, it is crucial to consult with an attorney to understand the specific laws in your state.
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Common-law marriage grants the same legal rights as a formal marriage
A common-law marriage is an informal marriage that is legally recognised in some states as a formal marriage. Common-law marriages are formed when a couple meets certain criteria that demonstrate a mutual intent to be a permanent married couple. This includes cohabitating, presenting as spouses to the public, and filing joint tax returns. Once a common-law marriage is established, it grants the couple many of the same legal rights as a formal marriage.
In states that recognise common-law marriages, property division upon divorce is the same as it would be for a formally married couple. There is no such thing as a "common-law divorce". If a common-law marriage can be proven, the couple must pursue a standard divorce like a formally married couple. This can be tricky, as showing marital intention often comes down to one partner's word against the other. Therefore, legal experts recommend couples intending to be in a common-law marriage write, sign, and date a statement of their intention to be married.
In community property states, which include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, assets and debts acquired during the marriage are considered joint property and will be divided equally in a divorce. All other states follow the equitable distribution system, where assets and earnings are divided fairly, but not necessarily equally.
Additionally, common-law marriages can impact eligibility for spousal benefits and estate planning. They can also complicate a breakup, as the law in certain states treats it more like a divorce. It is advisable to hire an attorney to help determine marital rights and obligations, especially in cases involving prenups, debt, child custody, and property questions.
To summarise, common-law marriages are legally recognised in certain states and grant couples many of the same legal rights as a formal marriage. However, there may be complexities and fewer built-in protections, so it is essential to understand the laws and take steps to protect oneself and one's assets.
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Common-law divorce can be invalidated after a separation period
A common-law marriage is an informal marriage that is legally recognised in some states. Couples must meet certain criteria that demonstrate a mutual intent to be a permanent married couple. This includes cohabitating, presenting to the public as spouses, and filing a joint tax return.
If a common-law couple decides to split up, they must go through a formal divorce process, similar to a traditionally married couple. This includes hiring divorce attorneys and potentially going to court to decide on property division, child support, and other matters. However, some state laws allow a common-law marriage to be invalidated after a period of separation without the need for a formal divorce. For example, in Texas, if a couple does not file formal divorce papers within two years of separation, the state presumes the common-law marriage never existed unless proven otherwise. This means that after two years of separation, the couple would not need to go through the formal divorce process, as the marriage is considered to have never legally occurred.
To avoid confusion and issues, legal experts recommend that couples intending to be in a common-law marriage write, sign, and date a statement of their intentions. Similarly, couples who explicitly do not want to be considered common-law married and want to avoid a potential formal divorce in the future can also write and sign a statement to that effect.
It is important to note that the laws governing common-law marriage and divorce vary by state. While some states recognise common-law marriage, others do not. Therefore, it is advisable to consult with an attorney or legal professional to understand the specific laws and requirements applicable to your situation.
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Frequently asked questions
A common-law marriage is an informal marriage that is legally recognised in some states. It is a couple's agreement to be life partners without a wedding ceremony or marriage license. Common-law marriage grants the couple many of the same legal rights as a formal marriage.
Common-law marriage is only recognised in certain states. To be in a common-law marriage, couples must meet certain criteria that demonstrate a mutual intent to be a permanent married couple. This includes cohabitating, presenting as spouses to the public, and filing joint tax returns.
Common-law marriages typically end when one spouse dies or the couple goes through a formal divorce. In some states, a common-law marriage can be invalidated after a period of separation. For example, in Texas, if a couple doesn't file for divorce within two years of separation, the state presumes the common-law marriage never existed.
A divorce can be a lengthy and complex process, and it is advisable to hire an attorney to help navigate financial and legal issues. During a divorce, spouses should work together to identify income, expenses, and how expenses will be divided and paid. Spouses should also open separate bank accounts for their income, and each has the right to half the money in a joint account. However, taking money from a joint account without the other spouse's approval may lead to tension and scrutiny.
