Gavin Howe
Common-law marriages are valid and legal in some US states, including Texas, Colorado, Iowa, Kansas, Montana, and Oklahoma. Couples in a common-law marriage are considered legally married and must file for divorce if they wish to end the marriage. The process of obtaining a divorce for a common-law marriage is similar to that of a formal marriage, and individuals may need to prove their marriage in the absence of official documents. If a common-law couple decides to separate, they must file for divorce to avoid charges of bigamy if they wish to remarry.
Can a divorcee from a common-law marriage remarry?
| Characteristics | Values |
|---|---|
| Can a divorcee from a common-law marriage remarry? | Yes, but they must first obtain an official divorce to avoid charges of bigamy. |
| Common-law marriage | A valid and legal way for a couple to marry in certain states, including Texas, Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, and Utah. |
| Divorce process | The process of obtaining a divorce from a common-law marriage is similar to that of a formal marriage. However, it can be challenging to prove the existence of a common-law marriage due to a lack of official documents. |
| Division of assets | In community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin), assets and debts are divided equally. In other states, assets and debts are divided fairly but not necessarily equally. |
| Grounds for divorce | The grounds for divorce in a common-law marriage are the same as in a formal marriage, including irreconcilable differences, separate living arrangements, or the confinement of one partner to a mental health facility. |
| Recognition across states | If a couple establishes a common-law marriage in a state that recognizes it, they are still considered married if they move to a state that does not recognize common-law marriages. |
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What You'll Learn
Divorce process for common-law marriages
In the United States, only a few states recognize common-law marriages. These include Texas, which considers common-law marriage, or "marriage without formalities", a valid and legal way to marry.
When a couple with a common-law marriage decides to part ways, they must go through a process that is similar to the divorce procedure of a traditional marriage. Here are the steps they may need to take:
- Validation of Common-Law Marriage: Before initiating the divorce process, the couple must establish the validity of their common-law marriage in a court of law. This typically requires providing evidence such as a written agreement showing mutual intent to be married, witness testimony confirming their public portrayal as a married couple, and documents indicating shared surnames or references to each other as spouses.
- Filing for Divorce: Once the common-law marriage is validated, the couple can file for divorce. In Texas, if court proceedings are not initiated within two years of separation, the law presumes the common-law marriage never existed unless proven otherwise.
- No-Fault Divorce Option: All states in the U.S. offer a "no-fault" divorce option, which means neither party needs to prove that the other spouse was at fault for the dissolution of the marriage. Couples can simply state irreconcilable differences or living separately for a specified period. This option simplifies and expedites the divorce process.
- Distribution of Assets and Liabilities: Similar to traditional marriages, common-law couples accumulate assets and liabilities during their union. During the divorce, these must be distributed equitably. This may involve evaluating jointly held properties, shared debts, and other financial matters. The couple can agree upon a division, or the court will decide if they cannot reach a mutual agreement.
It is important to note that the specific laws and procedures related to common-law marriages can vary across different states. Therefore, it is always advisable to consult with a legal professional or refer to state-specific resources for the most accurate and up-to-date information.
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Remarriage after a common-law marriage
In the United States, a common-law marriage is a rare form of marriage that is recognized in only a few states. These states include Texas, Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, and a few others. The laws governing common-law marriages vary widely by state, and some states, like Wisconsin, have abolished them altogether. Therefore, it is crucial to understand the laws in your specific state.
To establish a common-law marriage, certain requirements must be met, which may include the following:
- The individuals must agree to be married.
- They must live together as a married couple.
- They must present themselves as a married couple in public.
- In some states, there may be additional requirements, such as the need to file a Declaration of Informal Marriage.
When it comes to ending a common-law marriage, a legal divorce is necessary. This is true even if the couple moves to a state that does not recognize common-law marriages. The grounds for divorce in a common-law marriage are generally the same as those for a formal marriage, including irreconcilable differences, separate living arrangements, or confinement of one partner to a mental health facility.
After obtaining a legal divorce from a common-law marriage, individuals are free to remarry. It is important to note that the division of assets and property in a common-law divorce is typically handled in the same way as in a formal marriage, depending on the state's laws. Therefore, it is advisable to seek legal guidance to navigate the specific laws and requirements in one's state.
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Division of assets in common-law marriages
In the province of Ontario, Canada, common-law couples are not entitled to the division of property and assets, unlike married couples. This means that each common-law partner is entitled only to what they brought into the relationship or acquired during it. However, if you feel that you have contributed extensively to the value of a certain asset that belongs to your partner, such as a home or a pension, and that it is unjust for your spouse to retain its full value, you can make a claim for a constructive trust. This gives the beneficiary the right to property in a particular asset.
In the United States, the division of assets in common-law marriages varies by state. Most states are common-law property states, which acknowledge that property owned or inherited by a person before marriage remains their separate property after marriage. Additionally, in common-law property states, anything acquired by one person during the marriage is typically owned solely by that person. However, if separate and marital property have become commingled, a spouse may need to compensate the other for their share of the commingled property.
In community property states, a judge may presume that all property in a couple's possession during their marriage is marital property unless evidence suggests otherwise. Marital property generally includes assets or debts acquired during the marriage, such as paychecks, real estate, businesses, investments, and debts. If divorcing spouses disagree on whether an asset is marital property, the court may consider other evidence, such as both spouses' names on the title of the property.
Regardless of the state, couples can always enter into a prenuptial or postnuptial agreement before or after the marriage, outlining how their marital property will be divided in the event of a divorce.
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Child custody and support in common-law marriages
In the United States, child custody laws describe the legal and practical relationship between a parent and their child, including the right of the parent to make decisions for the child and the parent's duty to care for the child. Custody issues typically arise in divorce proceedings, as well as in paternity, annulment, and other legal proceedings involving children.
In most jurisdictions, the issue of with which parent the child will reside is determined in accordance with the best interests of the child. In rare cases, custody may be awarded to someone other than a parent, but only after the fundamental right afforded to biological parents has been overcome or where the third party has an established role that is similar to that of a parent. When the child's parents are not married, it is necessary to establish paternity before issues of child custody or support may be determined by a court.
In the case of common-law marriages, the process of filing for divorce is similar to that of a regular, statutory marriage: one or both spouses file a petition for divorce, property is distributed among the spouses, and a court makes determinations about custody, visitation, and support. Couples that become common-law spouses in states that recognize such arrangements can move to other states and still have their relationships recognized, thanks to the US Constitution's full faith and credit rule. This rule compels states to recognize a marriage validly made under another state's laws, even if that state does not recognize the same marriage requirements, including common-law marriage. Despite most states not recognizing common-law marriages, when these relationships end, almost every state will handle the situation similarly.
In determining child custody, courts consider various factors, including the child's wishes (if they are old enough), which parent was the child's primary caregiver when the marriage was intact, any disabilities that might impair a parent's ability to care for the child, any special needs of the child, and incidents of domestic violence. Spouses in a divorce can negotiate a settlement, agreeing on the best method of child custody and support, to avoid unnecessary litigation that is rarely in the interest of any of the parties or the children. The court will have to sign off on any agreements made regarding the children to ensure that their best interests are preserved.
In the 21st century, a new body of case law for custody of children in military families has emerged due to more frequent deployments of both mothers and fathers on active duty, as well as dual-career military couples. As a result, terms such as "custody" and "access" (known as "visitation" in the United States) have been replaced in many countries by the concepts of "residence" and "contact." Instead of a parent having "custody" of or "access" to a child, a child is now said to "reside" or have "contact" with a parent.
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Grounds for divorce in common-law marriages
In the United States, common-law marriages are recognised in only a few states, including Washington, D.C., and Texas. In states that recognise common-law marriages as a legal union, the divorce laws that apply to a traditional marriage also apply to couples married via common law. This means that the grounds for divorce in a common-law marriage are the same as in a traditional marriage.
The phrase "grounds for divorce" refers to reasons for divorce that are legally acceptable. Most states are no-fault divorce states, meaning that neither spouse is held responsible for the end of the marriage. In these states, the filing spouse doesn't have to disclose their reasoning and can simply state that the marriage is no longer working due to the couple's inability to get along and has, for all intents and purposes, "broken down".
However, some states are fault divorce states, where the spouse who files for divorce must prove their partner caused the marriage to fail. The most common fault grounds include adultery, cruelty, and abandonment. To use adultery as grounds for divorce, the filing party must present sufficient proof that their spouse had sexual relations with a third party. Proof of cruelty or the repeated infliction of serious physical or mental suffering by one marital partner on the other is also grounds for divorce. To obtain a divorce on these grounds, the filing spouse must prove that the cruelty has made the marriage intolerable for them. Abandonment or desertion can also be grounds for divorce, although leaving the household with the consent of the filing spouse or for reasons consistent with the ongoing existence of a positive relationship, such as completing military service or employment assignments, do not constitute abandonment.
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Frequently asked questions
Yes, a divorcee from a common-law marriage can remarry. However, they must first obtain an official divorce to avoid charges of bigamy.
A common-law marriage is a valid and legal way for a couple to marry without a marriage license or an official ceremony. Common-law marriages are also known as informal marriages or marriages without formalities.
Proving a common-law marriage can be challenging due to the lack of official documents. However, you can gather evidence such as presenting yourselves as a married couple in public, having jointly owned property, or signing legal documents together.
The process of obtaining a divorce from a common-law marriage is similar to that of a formal marriage. You must file for divorce and divide assets and debts, with the help of a family law attorney if needed.
No, common-law marriage is rare, and many states do not recognize it. Currently, only eight states allow common-law marriage: Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah.
