Keith Mack
While there is no such thing as a common-law divorce, common-law marriages are legally recognised in some US states and require a divorce, just like a conventional marriage. The process of divorce for a common-law marriage is similar to that of a traditional marriage, but with some unique legal considerations. For instance, before initiating the divorce process, the couple must establish the validity of their common-law marriage, which can be challenging if the marriage was recognised in a different state. This validation process may involve presenting evidence of cohabitation, shared finances, or public acknowledgment of the relationship.
| Characteristics | Values |
|---|---|
| Common law divorce | There is no such thing as a common law divorce |
| Common law marriage | Requires a divorce, just like a conventional marriage |
| Proof of marriage | No paper trail, license, or certificate |
| Recognition | Only a small and dwindling number of states recognize common law marriage |
| Requirements | Set by the state, not the federal government, and can vary significantly |
| Conditions | Partners must not already be married, must be of legal age, and may have to live together for a certain period |
| Divorce process | Almost the same as a traditional divorce, including distribution of assets and liabilities, alimony, and child support |
| Remarriage | Both parties are free to remarry, but any subsequent marriage before the divorce is finalized is considered invalid |
| Disputing existence | A partner may deny the existence of the marriage to avoid obligations like alimony or property division |
| Validation | Must be established in a court of law, often through evidence of cohabitation, shared finances, or public acknowledgment |
| Filing | A formal petition is submitted to the court, outlining reasons for divorce and other issues to be addressed |
| No-fault divorce | Available in all states, meaning neither party is legally required to prove fault |
| Finalization | A judgment of divorce is granted only after the court has reviewed and approved all aspects |
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What You'll Learn
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.
To prove a common-law marriage, couples must show that they meet the legal requirements for a valid common-law marriage in their state. This includes providing evidence such as an affidavit or property deed. Here are some ways to prove a common-law marriage:
- Mutual and open assumption of a marital relationship: Both parties must have intended for their relationship to be a marriage and held themselves out in public as a married couple. This can be proven through affidavits from friends and family who are familiar with the relationship.
- Satisfying general marriage requirements: Both spouses must be at least 18 years old (or have parental consent if younger) and have the mental capacity to understand the commitment and consequences of marriage. All states also prohibit marriage between close relatives (incest) and polygamy.
- Declaration of Informal Marriage: In Texas, couples can sign a Declaration of Informal Marriage with the county clerk, which serves as valid proof of marriage.
- Other documents: Lease agreements, tax returns, and insurance policies may also be used to prove a common-law marriage.
It is important to note that the requirements for proving a common-law marriage vary by state, and same-sex couples may face additional challenges in gathering the necessary evidence. Additionally, some states have a two-year statute of limitations for court proceedings to prove a common-law marriage after a separation.
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State recognition
While there is no such thing as a "common-law divorce", if a couple lives in a state that recognises common-law marriage, they must pursue a standard divorce like any couple married through traditional means. Common-law marriages are not formally established through a marriage license or ceremony, which can make it difficult to prove. However, the process for proving a common-law marriage varies by state, as not all states recognise them, and those that do may have specific requirements.
The requirements for common-law marriage are set by the states, not the federal government, and can vary significantly. One common feature is that partners have to show that they were not already married to someone else before beginning the common-law marriage. They also must have been of legal marriage age. Some states require couples to live together for a certain period, while in other states, time cohabiting is not a factor.
In Texas, couples can register their informal marriage by filing a declaration with the county clerk. In Oklahoma, the statute says that you must get a marriage license if you want to be married in the state, but the Oklahoma Supreme Court has said that if the legislature wants to abolish common-law marriage—which has long been recognised in the state—it must do so explicitly. Many states recognise only those common-law marriages that existed before the state abolished this type of marriage. For example, Alabama, Alaska, and Florida.
In New York, common-law marriages were once legal. After seven years of living together, a couple could be recognised as married. However, in 1933, New York ceased recognising common-law marriages.
If a common-law couple has a child, they have the same parental rights and responsibilities as any other married couple. If a common-law spouse dies or is disabled, their spouse will be automatically entitled to benefits and assets. However, the surviving spouse may have to prove the validity of the marriage to claim these benefits or inherit property.
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Legal and financial matters
While there is no such thing as a "common-law divorce", if a couple lives in a state that recognises common-law marriage, they must pursue a standard divorce like any couple married through traditional means. Common-law marriages are legally treated the same as conventional marriages. This means that common-law married couples seeking a divorce must first prove they are married under the laws of that state, despite not having a marriage license. This can be done through evidence of cohabitation, shared finances, or public acknowledgment of the relationship.
The divorce process itself involves the submission of a formal petition to the court, outlining the reasons for the divorce and any other pertinent issues that need to be addressed, such as property division, alimony, and child custody. Couples can opt for mediation for a quicker and more peaceful resolution. Similar to traditional marriages, common-law couples accumulate assets and liabilities over time, which must be distributed equitably during the divorce process. Both parties can agree upon a division, or the court will decide on their behalf. Depending on the circumstances, one party may be required to pay alimony or child support.
It is important to note that the requirements for common-law marriage vary by state, and not all states recognise it. Some states, such as Texas, allow couples to register their informal marriage by filing a declaration with the county clerk. Other states, like New York, previously recognised common-law marriages but have since ceased to do so. Understanding the local laws governing common-law marriages is crucial for effectively resolving legal and financial matters in the event of a divorce.
To navigate the complexities of a common-law divorce, individuals can seek guidance from financial and legal advisors. These professionals can help determine the potential financial impact of the divorce and ensure compliance with the applicable state laws.
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Remarriage considerations
The process of obtaining a common-law divorce can vary depending on the state, as not all states recognize common-law marriages. In states that do recognize common-law marriages, couples must first establish the validity of their marriage in a court of law. This typically involves presenting evidence of cohabitation, shared finances, and public acknowledgment of the relationship as a married couple.
Once the common-law marriage is validated, the couple can proceed with the divorce process, which may include mediation for a quicker and more peaceful resolution. It is important to note that the distribution of assets, liabilities, and spousal support in a common-law marriage divorce is similar to that of a traditional marriage. Child custody arrangements may also need to be established during the divorce process.
When considering remarriage after a common-law divorce, it is crucial to ensure that the previous relationship has been legally terminated. This includes obtaining a divorce judgment that outlines the division of assets, liabilities, spousal support, and child custody arrangements. Without a formal divorce decree, any subsequent marriage may be considered invalid.
Additionally, individuals should be aware of the potential challenges associated with common-law marriages and divorces. For example, a partner may deny the existence of a common-law marriage to avoid obligations like alimony or property division. Understanding the local laws and seeking guidance from a financial or legal advisor can help individuals navigate the complexities of common-law remarriage considerations effectively.
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Mediation
Common-law marriages are legally recognised in some US states, but not all. The requirements for common-law marriage are set by individual states, not the federal government, and can vary significantly. One common feature is that partners have to show that they were not already married to someone else before beginning the common-law marriage. They also must have been of legal marriage age. Some states require couples to live together for a certain period to be considered married under common law, while in other states, cohabitation time is not a factor.
Divorce from a common-law marriage involves unique legal considerations, as common-law marriages are not formally established through a marriage license or ceremony. Before delving into the divorce process, the couple must first establish the validity of their common-law marriage in a court of law. This typically involves presenting evidence of cohabitation for a stipulated period, the intention to live as a married couple, and public acknowledgment of their relationship as such.
Once agreements are reached on each issue, a formal written separation agreement is drafted, outlining the terms and conditions of the divorce. This is then submitted to the court for approval. While mediators do not typically provide legal advice, it is recommended that each spouse has their attorney review the proposed agreement to ensure their rights and interests are protected.
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Frequently asked questions
There is no such thing as a common law divorce. If a couple lives in a state that recognizes common law marriage, they will need to pursue a standard divorce like any couple married through traditional means.
To prove a common law marriage, individuals must demonstrate the validity of their union, often through evidence like cohabitation, shared finances, or public acknowledgment of the relationship. The requirements for common law marriage are set by the states and can vary significantly.
The process for divorce from a common law marriage is similar to that of a traditional marriage. Once the common law marriage is verified, the couple may choose to divorce through mediation for a quicker resolution.
Similar to traditional marriages, common-law couples accumulate assets and liabilities over time. During the divorce process, these must be distributed equitably. This might include jointly held properties, shared debts, and spousal support.
