Keith Mack
Common-law marriages, also known as informal marriages, are not officiated by a clergy member or performed through a civil ceremony, and there is no marriage license. However, they are recognised as valid in a handful of US states as long as certain legal requirements are met. Common-law marriages differ from traditional marriages in that there is no license obtained before marriage. When seeking a divorce, individuals must typically demonstrate the validity of their common-law marriage through evidence like cohabitation, shared finances, or public acknowledgment of the relationship. While there is no such thing as a common-law divorce, the divorce process is the same for everyone. Common-law spouses must file for divorce in court, and the same steps are followed as for married couples with a formal marriage license. Divorce documents are usually part of the public record, and include certificates, decrees, and records.
| Characteristics | Values |
|---|---|
| Recognition of common-law separation | Varies by state; Texas doesn't recognize common-law separation, but Kansas does |
| Common-law marriage recognition | Only a few states in the U.S. recognize common-law marriages; currently 9: Colorado, Iowa, Kansas, Oklahoma, Rhode Island, Texas, Utah, Montana, and New Hampshire |
| Common-law marriage requirements | Cohabitation for a defined period (as stipulated by the state), joint tax returns, joint bank accounts, joint ownership of property, use of the same last name, statements from friends and family |
| Common-law divorce process | The same as a formal officiated marriage; a petition for divorce must be filed with the court |
| Common-law divorce considerations | Unique legal considerations, distribution of assets and liabilities, alimony and child support, child custody |
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What You'll Learn
Common law divorce requirements vary by state
Common-law marriages are not formally established through a marriage license or ceremony. The requirements for common-law marriages are set by the states, and not all states recognize them. The specifics of what constitutes a legal common-law marriage vary considerably by state.
In some states, common-law marriages are treated the same as traditional marriages. Once established, this marital relationship grants many of the same legal rights as a formal marriage. However, the process of ending a common-law marriage can be more complex. While a couple that is married under common law in one state is still married if they move to another state that does not recognize common law, the process of divorce varies by state.
For instance, in Texas, if court proceedings are not filed within two years of the separation, Texas law presumes a common-law marriage never existed unless proven otherwise. In such cases, both sides can walk away and act as though the marriage never existed. However, this can be problematic if there are shared children, property, and assets. If there is no divorce, there is no written agreement that legally protects the interests of either party.
In some states, couples can simply state that they have "irreconcilable differences" or have been "living separately for a specified duration" to initiate the divorce process. To prove a common-law marriage, individuals may have to demonstrate its validity through evidence like cohabitation, shared finances, joint tax returns, joint bank accounts, joint ownership of property, use of the same last name, or public acknowledgment of the relationship.
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Common law marriages must be proven
Common-law marriages are recognised in some states in the US, as well as in India and the UK. However, the process of proving a common-law marriage can be challenging and often requires substantial evidence.
In the US, common-law marriages are currently recognised in Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia. To prove a common-law marriage in these states, couples must demonstrate that they meet the requirements for a valid common-law marriage, which typically includes cohabitation for a defined period, usually one year in most states. Additionally, couples may need to provide evidence such as joint bank accounts, tax filings, utility bills, joint ownership of property, use of the same last name, and statements from friends and family who recognise the couple as married.
In Texas, for example, if one partner denies the existence of a common-law marriage, the other spouse must prove to the court that the relationship met the requirements for a common-law marriage. This can be done through various types of evidence, including joint tax returns, insurance policies, and shared property. Texas also has a two-year statute of limitations for filing court proceedings to prove a common-law marriage, after which the marriage may not be legally recognised.
In India, the Supreme Court has defined a "relationship in the nature of marriage" as akin to a common-law marriage. The requirements for such a relationship include being of marriageable age, not currently married, cohabiting for a "significant" period, and living together voluntarily in a way that is perceived by society as a married couple.
In the UK, common-law marriage is not widely recognised in Northern Irish, English, or Welsh law. However, under Scots Law, there were previously several forms of "irregular marriage," including "marriage by cohabitation with habit and repute." This form of common-law marriage was abolished in 2006, but it demonstrates that common-law marriages have existed in the UK in the past.
While the specific requirements and recognition of common-law marriages vary by jurisdiction, the key theme is the need to prove the existence of a legitimate marriage. This proof is essential, especially when it comes to divorce, as it determines the rights and protections afforded to each spouse during the legal separation process.
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Common law divorce documents are public record
In the United States, common-law marriages are recognised in a few states, and the law treats these marriages the same as traditional marriages. Common-law marriages differ from traditional marriages in that there is no license obtained before marriage. However, to be considered a valid common-law marriage, a couple must live together for a certain amount of time, usually a year in most states.
When it comes to divorce, common-law marriages can be ended without a formal divorce process if neither party pursues it. In such cases, both parties can simply walk away and act as though the marriage never existed. However, this can lead to issues regarding child custody, child support, spousal support, and property division. Therefore, it is generally advisable to obtain a divorce for a common-law marriage, especially if there are shared children, assets, and liabilities.
The process of obtaining a divorce for a common-law marriage is similar to that of a traditional marriage. A petition for divorce must be filed with the court, and a judge will make the final decisions regarding property division, child custody, and spousal support. This process can be handled by a divorce attorney, who can help protect the rights of their client throughout.
In terms of public record, divorce documents, including certificates, decrees, and records, generally become part of the public record unless there are specific reasons to seal them. Court proceedings, including divorce proceedings, are typically considered public information. Individuals can request the redaction or sealing of certain sensitive information within divorce records, such as identifying confidential details like names of children or financial amounts. While the process may vary by state, individuals can generally request copies of court records, including divorce records, by submitting a request form to the respective court or judicial council.
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Common law divorce asset distribution
In the United States, there are two systems for dividing assets and debts in a divorce: community property and equitable distribution. In community property states, most property acquired during the marriage, excluding gifts, inheritances, and assets owned prior to the marriage, is considered marital property and is equally divisible in the event of divorce. Community property states tend to divide property equally.
On the other hand, equitable distribution states divide property equitably, but not always equally. In these states, assets held by either party acquired before or during the marriage, including assets received via gift or inheritance, are equitably divided at the time of divorce. Equitable distribution considers the length of the marriage, each spouse's contributions, and future financial needs. Courts in equitable distribution states will split all assets, earnings, personal property, and debts between the spouses in a division that is fair but not necessarily equal.
It is important to note that even within these two systems, the specific laws and procedures for asset distribution during divorce may vary from state to state. For example, Connecticut is an equitable distribution state, but it treats all property as marital property, regardless of when it was acquired. In contrast, most other states consider property owned by a spouse prior to marriage as separate property that is exempt from division in a divorce.
To ensure a fair distribution of assets and debts during a divorce, it is recommended to consult with a lawyer or family law firm that specializes in divorce and property distribution laws in your specific state. They can provide expert legal advice and help protect your rights and interests throughout the divorce proceedings.
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Common law divorce and child custody
Common-law marriages, though less conventional than traditional marriages, come with their own set of unique legal intricacies, especially when it comes to divorce and child custody. In the United States, common-law marriages must be established in a court of law before a divorce process can begin. This involves presenting evidence of cohabitation for a certain period, intention to live as a married couple, and public presentation as such.
When it comes to child custody in a common-law marriage, the same considerations apply as in any other marriage. The primary concern in determining child custody is the best interest of the child, and courts have several options for custody arrangements to ensure this. These include temporary custody during divorce proceedings, exclusive custody, joint custody, and third-party custody.
Temporary custody grants custody to an individual until the divorce or separation proceeding is finalised. Exclusive custody gives one parent all custodial rights, allowing them to make critical decisions about the child's upbringing, while the other parent may have visitation rights. Joint custody grants both parents equal rights in making decisions and can take the form of joint legal custody, joint physical custody, or both. In rare cases, the court can award custody to a third party if they have sought custody.
In addition to custody arrangements, divorce in common-law marriages involves the distribution of assets and liabilities, alimony or spousal support, and child support. It is imperative to establish a formal child custody agreement to protect both parents and the child, and experienced divorce and family law attorneys can provide valuable guidance in navigating this complex process.
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Frequently asked questions
A common-law marriage is a marriage that is not formally established through a marriage license or ceremony. Common-law marriages are recognized in some states and grant many of the same legal rights as a formal marriage.
To prove a common-law marriage, individuals must demonstrate its validity through evidence such as cohabitation, shared finances, or public acknowledgment of the relationship. This may include documents such as joint tax returns, insurance policies, utility bills, or shared property.
The process of divorcing a common-law marriage is generally the same as a traditional marriage divorce. It involves filing a petition for divorce with the court and serving your spouse. At the end of the process, a judge will make decisions about property division, child custody, and spousal support.
One unique consideration in common-law divorces is the potential dispute over the existence of the marriage. A partner may deny the marriage to avoid obligations like alimony or property division, so proof of the marriage's existence is crucial. Additionally, understanding the specific laws of your state regarding common-law marriages is essential, as they can vary.
Divorce documents, such as certificates, decrees, and records, are generally part of the public record unless there are specific reasons to seal them. These records can be requested by the individuals involved in the divorce, but accessing them may involve some time and cost.
