Cecily Zamora
Ending a common-law marriage can be a complex process, and the steps to do so vary depending on the state in which the marriage took place. Common-law marriages are not recognized in all states, and even in states where they are recognized, there may be specific requirements for proving the marriage's validity. Generally, a common-law marriage is established by two people living together, intending to be in a marital relationship, and portraying themselves as a married couple to the world. To end a common-law marriage, it is typically necessary to go through a legal divorce process, similar to that of a traditional marriage. This may involve filing a formal petition with the court, proving the validity of the common-law marriage, and resolving issues such as asset distribution, child custody, and spousal support.
| Characteristics | Values |
|---|---|
| Common law marriage recognition | Common law marriages are recognized in some states, including Colorado, Texas, Iowa, Kansas, and Montana. Some states have abolished it, like Wisconsin. |
| Divorce process | The process for ending a common law marriage is the same as a statutory marriage. It requires a normal divorce process, which can vary by state. |
| Proving marriage | Couples seeking a divorce must prove their common-law marriage, often through evidence like cohabitation, shared finances, or public acknowledgment of the relationship. |
| Distribution of assets and liabilities | Common law couples must equitably distribute assets and liabilities during divorce, including jointly held properties, shared debts, and other financial elements. |
| Alimony and child support | Depending on the circumstances, alimony or spousal support may be required. If children are involved, child support and custody arrangements must be made, with legal paternity established for unmarried couples. |
| Finalization of divorce | The court must review and approve all aspects of the divorce, including property division, alimony, and child custody, before granting a judgment that legally ends the marriage. |
| Bigamy | Bigamy laws apply to common-law marriages, prohibiting individuals from entering a new marriage before legally ending the previous one. |
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What You'll Learn
Proving your common-law marriage
Common-law marriage is an informal marriage without a marriage license or certificate. It is fully recognized in seven states and the District of Columbia. To prove a common-law marriage, you must show that you established your marriage relationship in a state that recognizes such marriages. This includes providing evidence that:
- Both parties intended for their relationship to be a marriage
- Both parties were at least 18 years old (or had parental consent) and had the mental capacity to understand the commitment and consequences of marriage
- You are not already married, formally or informally, to anyone else
- You lived together and held yourself out in public as a married couple
The exact evidence required to prove a common-law marriage will depend on the laws of the state in which the marriage was established. However, some examples of documents that may help prove a common-law marriage include:
- Affidavits or personal statements declaring the intention to marry
- Documents showing that you or your children assumed your partner's last name
- Friend and family affidavits from people familiar with your relationship, including how they know you, the length of time you and your spouse have lived together, whether there was a public announcement of your marriage, and whether friends, neighbors, and family think you are married
- Driver's license or Social Security number card showing a name change that matches your spouse's name
- Birth certificates listing you and your common-law spouse as parents of your child
- Proof of cohabitation, such as leases or other documents signed as spouses, joint purchases, joint loan applications, or public benefits applications listing your partner
- Evidence of including your partner on your health insurance or making them the beneficiary of a life insurance policy
If there is a dispute about whether a common-law marriage existed and no declaration was filed, it may be necessary to go to court to prove the marriage. In Texas, for example, there is a two-year statute of limitations on these proceedings, and after this period, it is presumed that a common-law marriage never existed unless proven otherwise. Therefore, it is important to understand the specific requirements and time limitations that apply in your state.
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Understanding your state's stance on common-law marriage
The recognition of common-law marriage varies across different states in the US. As of 2022, common-law marriages are recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah and New Hampshire have limited recognition of common-law marriage.
In states that recognize common-law marriages, the process of divorce is similar to that of a conventional marriage. Common-law marriages require a divorce, just like a traditional marriage. However, one significant difference is that a couple seeking a divorce must first prove their marriage status under the laws of their state, despite not having a marriage license. This proof can be established through evidence such as cohabitation, shared finances, or public acknowledgment of the relationship.
The requirements for proving a common-law marriage vary by state. In Texas, couples can register their informal marriage by filing a declaration with the county clerk. Both parties must complete and sign the form in the presence of the county clerk, who then records it as part of the official county records. Utah, on the other hand, requires a petition for an "unsolemnized marriage" to be filed while the couple is still together or within one year of their separation.
It is important to note that the number of states recognizing common-law marriages has been decreasing over time, with several states abolishing the practice in recent decades. As a result, couples with a common-law marriage recognized in one state may still be considered married if they move to a state that does not recognize such unions.
Understanding the specific laws and requirements of your state is crucial when dealing with common-law marriages and divorces. While the general overview provided here offers some insight, consulting local laws and, if necessary, seeking legal advice is essential for navigating the complexities of this topic.
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Division of assets and liabilities
Ending a common-law marriage is a complex process that varies depending on the state and the specific circumstances of the couple. Here is some information regarding the division of assets and liabilities in the context of ending a common-law marriage:
Similar to traditional marriages, common-law couples often accumulate assets and liabilities during their relationship. These may include jointly held properties, shared debts, and other financial elements. When it comes to dividing these assets and liabilities during the dissolution of a common-law marriage, there are a few key considerations:
Proof of Common-Law Marriage
Before dividing assets and liabilities, the couple must first prove the existence of their common-law marriage. This is because common-law marriages are not typically established through a marriage license or formal ceremony. Evidence such as cohabitation, shared finances, joint tax returns, insurance policies, or shared property may be used to demonstrate the validity of the union.
State-Specific Laws
The division of assets and liabilities in a common-law marriage may vary depending on the state. In some states, common-law marriages may no longer be recognised, but if the marriage was valid before the law changed, it may still be considered legal. It's important for couples to understand the specific laws governing common-law marriages in their state to effectively navigate the division of assets and liabilities.
Equitable Distribution
During the divorce process, assets and liabilities are typically distributed equitably between the common-law couple. This may involve a thorough evaluation of their financial situation, including jointly held properties, shared debts, and other financial considerations. Both parties can agree upon a division, or if they cannot reach an agreement, the court will decide on their behalf.
Debt Division
Debts acquired during a common-law relationship are generally divided equally. This includes various forms of debt, such as credit card debt, loans, and other financial obligations incurred by either party. It's important to note that student debt is usually treated as the separate property of the spouse who took on the debt and is not typically divided between the couple.
Asset Protection
If an individual wants to protect specific assets from being divided with their common-law partner in the event of a separation, they may consider consulting a lawyer to draft a cohabitation agreement before cohabiting. This can help outline how assets and liabilities will be divided if the relationship ends.
It's important to note that the division of assets and liabilities in a common-law marriage can be complex, and specific circumstances may vary. Seeking legal advice from a professional familiar with the laws in your state is always recommended to ensure a fair and equitable resolution.
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Child custody
The process of ending a common-law marriage is similar to ending a formal marriage. Common-law marriages are not formally established through a marriage license or ceremony, and the specifics of what constitutes a legal common-law marriage vary by state. However, any state that recognizes a common-law marriage will require a standard divorce.
When seeking a divorce, individuals must typically demonstrate the validity of their common-law marriage through evidence of cohabitation, shared finances, or public acknowledgment of the relationship. In some states, common-law marriages from before the date it was abolished may still be recognized.
Courts will always consider the best interests of the child when establishing a custody arrangement between parents. Both parents can agree upon a division, or if an agreement can't be reached, the court will decide on their behalf. Modern laws tend to favor joint custody, believing that children benefit from the influence of both parents. However, if there is a record of domestic violence, financial incapability, or other issues that may prevent a person from being a suitable parent, the other parent will likely be awarded sole custody.
It is in the best interest of both parents and the child to establish a lawful agreement. By agreeing to the best method of child custody and support, parents can avoid unnecessary litigation that is rarely in the interest of any of the parties or the children.
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Finalizing the divorce
Ending a common-law marriage is a complex process that varies depending on the state and the circumstances. It is important to seek legal advice and understand the specific laws and requirements in your state. Here are some key considerations for finalizing a divorce from a common-law marriage:
- Proving the existence of a common-law marriage: In some states, couples seeking to divorce must first prove that their common-law marriage was valid under state law. This can include providing evidence of cohabitation, shared finances, public acknowledgment of the relationship, joint tax returns, insurance policies, shared property, and other factors.
- Distribution of assets and liabilities: Similar to traditional marriages, common-law couples need to divide their assets and liabilities equitably during the divorce process. This may involve evaluating jointly held properties, shared debts, and other financial matters. Both parties can agree on a division, or the court will decide if an agreement cannot be reached.
- Alimony and child support: Depending on the circumstances, one spouse may be required to pay alimony or spousal support to the other. If there are children involved, child support and custody arrangements will also need to be determined. Legal paternity may need to be established for child custody and support decisions.
- Finalizing the divorce: The court will review and approve all aspects of the divorce, including property division, alimony, and child custody arrangements. Once the court grants a judgment of divorce, the common-law marriage is formally and legally ended.
- Bigamy laws: It is important to note that bigamy laws apply to common-law marriages. This means that an individual cannot enter into a new marriage, whether common-law or formal, without legally ending their previous marriage.
It is always advisable to consult with an experienced family law attorney who can guide you through the specific laws and procedures in your state and help protect your rights during the divorce process.
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Frequently asked questions
A common-law marriage is a marriage that is recognised by a court as a marriage, despite the couple not having complied with the requirements of a statutory marriage, such as obtaining a marriage license. Common-law marriages are not formally established through a marriage license or ceremony, and the specifics of what constitutes a legal common-law marriage vary by state.
The process for ending a common-law marriage is the same as ending a statutory marriage and requires a normal divorce. However, as common-law marriages are not documented with a marriage license, it can be difficult to prove that a common-law marriage existed in the first place. To prove the existence of a common-law marriage, evidence such as cohabitation, shared finances, joint tax returns, insurance policies, shared property, and public acknowledgment of the relationship may be required.
Similar to traditional marriages, common-law couples accumulate assets and liabilities over time, which must be distributed equitably during the divorce process. This may include a thorough evaluation of jointly held properties, shared debts, and other financial elements. Both parties can agree upon a division, or the court will decide on their behalf. Depending on the circumstances, one party may also be required to pay alimony or child support.
