Kara Sears
In the US, the legal status of common-law marriages varies from state to state. While some states like Texas recognize common-law marriages as a valid and legal way for couples to marry, others like Wisconsin have abolished it. For couples who live in a state that recognizes common-law marriages, they will need to pursue a standard divorce like any other couple. However, proving a common-law marriage can be challenging due to the absence of official documents. To establish a common-law marriage, couples must demonstrate their agreement to be married through their actions, such as filing joint tax returns, assuming each other's last names, or presenting themselves as married.
Can you get divorced in common-law marriages?
| Characteristics | Values |
|---|---|
| Is divorce required for common-law marriages? | Yes, a standard divorce is required in states that recognize common-law marriages. |
| Which states recognize common-law marriages? | Colorado, Iowa, Kansas, Oklahoma, Rhode Island, Texas, Utah, Montana, New Hampshire, and the District of Columbia. |
| What is the process of obtaining a divorce for common-law marriages? | Similar to formal marriages, but it can be tricky to prove the marriage due to a lack of official documents. |
| What are the implications for asset division and custody issues? | The division of assets depends on the reason for divorce and the type of assets involved. Custody issues may also arise if the couple has children together. |
| Is there a time requirement for common-law marriages? | No, there is no specific time requirement. However, living together for a significant period (a year or more) and taking other measures, such as filing joint tax returns or assuming the other's last name, can indicate a common-law marriage. |
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What You'll Learn
Common-law marriages are recognised in only a few US states
The recognition of common-law marriages varies across different US states. While some states like Texas, Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, and Utah recognise common-law marriages, others like Wisconsin have abolished them. Due to this variation in state laws, the process of obtaining a divorce for common-law marriages differs across the country.
In states that recognise common-law marriages, couples who wish to terminate their relationship must pursue a standard divorce, similar to that of formal marital unions. This process involves filing for separation or divorce and addressing issues such as the division of assets and child custody. However, proving a common-law marriage can be challenging due to the absence of official documents. Couples may need to present evidence of their agreement to a permanent marital union, such as joint tax returns, name changes, or legal documents signed together.
On the other hand, in states that do not recognise common-law marriages, couples who previously established such a marriage in a different state may still be legally considered married. For example, if a couple with a legitimate common-law marriage in Texas moves to a state like Massachusetts, which does not recognise common-law marriages, their marriage should still be valid under the Full Faith and Credit Clause of the United States Constitution.
It is worth noting that the concept of a "common-law divorce" is a myth. There is no separate legal process for dissolving a common-law marriage. Instead, couples in recognised common-law marriages must follow the same divorce procedures as traditionally married couples. Additionally, the length of time a couple lives together is not a determining factor in the status of their relationship in all states. While some sources mention a seven-year standard for automatic consideration as married under common law, this has no legal basis.
To summarise, the recognition and legal processes surrounding common-law marriages vary across US states. While some states continue to recognise these marriages, others have abolished them. Couples in recognised common-law marriages who wish to separate must pursue a standard divorce process, and the division of assets and child custody may be addressed during this procedure.
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A standard divorce is required to end a common-law marriage
In the US, a standard divorce is required to end a common-law marriage. Common-law marriages are rare, and many states no longer recognize them. However, if a couple lives in a state that recognizes common-law marriage, they must pursue a standard divorce to end their union. The process of obtaining a divorce for a common-law marriage is similar to that of a formal marriage. The main difference is that a common-law couple must prove their marriage was legally recognized.
Proving a common-law marriage can be challenging due to the absence of official documents. However, a qualified family law attorney can help build evidence to support the claim. Various factors, such as joint tax returns, name changes, and presenting themselves as a married couple, can be used to demonstrate that the individuals agreed to a permanent marital union. For example, signing a mortgage or other legal documents together can indicate that the couple presented themselves as married to the community.
The legal status of common-law marriages varies across states. For instance, Texas recognizes common-law marriages as legally equivalent to formal marriages, requiring divorce to dissolve the union. On the other hand, Wisconsin does not recognize common-law marriages at all. If a couple establishes a common-law marriage in a state like Texas and then moves to a state that does not recognize common-law marriages, they are still legally married and would need to obtain a divorce to end their marriage.
It is important to note that even if a couple resides in a state that does not recognize common-law marriage, their marriage may still be valid under Article IV, Section 1 of the United States Constitution, also known as the Full Faith and Credit Clause. This means that if they decide to separate, they may still need to pursue a standard divorce. Additionally, if court proceedings are not initiated within two years of separation in Texas, the law presumes a common-law marriage never existed unless proven otherwise.
The division of assets during a common-law divorce depends on the circumstances and the nature of the assets involved. In community property states like Texas, most assets acquired during the marriage are jointly owned by both partners and are typically divided equally in no-fault divorces. However, in at-fault divorces, one partner may receive a larger share or compensation, and penalties may apply for concealing assets. If a common-law couple separates without a formal divorce, they may still have claims to assets acquired by their former partner after separation.
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Proving a common-law marriage can be challenging
In Texas, a common-law marriage is a valid and legal way for a couple to marry and is recognized as holding the same status as a formal marriage. To prove a common-law marriage in Texas, evidence must be provided, and court proceedings must be filed within two years of separation. Examples of evidence that may help prove a common-law marriage include jointly owned bank accounts, life insurance policies with the partner as the beneficiary, birth certificates listing both partners as parents, and tax statements filed as a married couple.
Same-sex couples may face additional challenges in gathering evidence to prove their common-law marriage due to historical discrimination and the previous lack of legal recognition of their relationships. However, since the United States Supreme Court's 2015 decision in Obergefell v. Hodges, same-sex common-law marriages are now recognized in Texas.
In South Carolina, certain criteria must be met for a common-law marriage to be recognized, including age, marital status, and blood relation requirements. Both partners must live together and agree to consider themselves spouses. While proving a common-law marriage can be difficult, a qualified family law attorney can help build evidence to support the claim.
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Division of assets depends on the type of divorce
Common-law marriages are rare, and many states do not recognize them. However, in states where they are recognized, such as Texas, they are considered valid and legal. In such cases, common-law marriages are treated similarly to formal marriages in terms of divorce proceedings.
The division of assets during a divorce depends on the type of divorce and the nature of the assets held. In community property states, assets acquired during the marriage are generally considered community property and are divided equally between the spouses. This can include real estate, financial assets, personal property, and debt. On the other hand, separate property states recognize assets acquired before the marriage, gifts, inheritances, and proceeds of a pension vested before the marriage as separate property belonging to only one spouse.
In cases of a no-fault divorce, community property is often divided equally between the spouses. However, if one partner sues for an at-fault divorce, they may be awarded a larger share of the assets. Additionally, if one spouse attempts to conceal assets during the divorce process, they may be penalized.
It is important to note that if a common-law couple decides to separate without obtaining a legal divorce, one spouse may still claim a share of the assets acquired by the other spouse after the unofficial separation. This emphasizes the importance of legally dissolving a common-law marriage, even if the couple moves to a state that does not recognize such marriages.
The specific laws and procedures for dividing assets during a divorce can vary from state to state. Therefore, it is always advisable to consult with a qualified family law attorney who can provide guidance based on the specific circumstances and state laws.
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Common-law marriages are also recognised for same-sex couples
In the United States, common-law marriages are recognized in only nine states and Washington, D.C. These states are: Colorado, the District of Columbia, Iowa, Kansas, Montana, Oklahoma, Rhode Island, Texas, and one other. The recognition of common-law marriages varies widely by state. For instance, in Texas, common-law marriages are recognized and hold the same legal status as formal marriages. On the other hand, in Wisconsin, common-law marriages are not recognized at all.
Despite the rarity of common-law marriages, they are also recognized for same-sex couples. This recognition came about following the Obergefell v. Hodges decision in 2015, which legalized same-sex marriage in every state. Since then, same-sex couples have been entitled to have their valid common-law marriages recognized, and same-sex common-law marriages are now recognized in Texas. This decision was also applied retroactively to common-law marriages established before 2015, as any state laws restricting common-law marriage to heterosexual couples were deemed a violation of the constitutional rights of same-sex couples.
However, proving a common-law marriage can be challenging, especially for same-sex couples who entered committed relationships when same-sex marriage was illegal. While some evidence of a marital relationship may not be available for these couples, such as joint tax returns or listing their partner as their "spouse" on official records, other evidence can be used to prove a common-law marriage, such as signing a mortgage or another legal document together. Additionally, Texas law does not require couples to be together for a specific period to declare a common-law marriage, and couples can register their common-law marriage by filing a declaration with the county clerk.
If a common-law couple, including same-sex couples, decides to split up, they must go through the same process of filing for divorce as a formal marriage. This process can be tricky, and it is recommended to consult with a lawyer to help build evidence of the common-law marriage.
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Frequently asked questions
Yes. If you are in a state that recognizes common-law marriage, you will need to pursue a standard divorce like any couple that got married through traditional means.
You may still have to get divorced even if you now reside in a state that does not recognize common-law marriage. If you got married in a state that recognizes common-law marriage, your marriage should still be valid under Article IV, Section 1 of the United States Constitution, also known as the Full Faith and Credit Clause.
Proving a common-law marriage can be tricky due to the fact that there are no official documents and much of what defines a marriage happens in private. A qualified family law attorney can help build evidence for you. For example, if you have signed a mortgage or another legal document together, it could be used as evidence that you present as a married couple.
The process of obtaining a divorce from a common-law marriage is the same as it is with formal marital unions. The biggest difference is that you will need to prove that you and your partner were married in the eyes of the law.
The division of assets depends on the reason for the divorce and the type of assets held. If you end your relationship with a common-law spouse without getting a divorce, they might claim a share of the assets you acquire after you separate.
