Anaya Nolan
Ending a common-law marriage can be legally complex and varies depending on the state. Common-law marriages are only recognized in a few states, and some states have specific requirements for proving the marriage existed, such as cohabitation, shared finances, or public acknowledgment of the relationship. If a common-law marriage is legally recognized, it is treated the same as a statutory marriage, and a legal divorce must be obtained through a court. This may involve unique legal considerations, such as proving the validity of the marriage and distributing assets and liabilities. Working with an experienced family law attorney can help individuals navigate the complexities of ending a common-law marriage and protect their rights.
| Characteristics | Values |
|---|---|
| Requirements to end a common-law marriage | Proving the marriage's validity in court, including evidence of cohabitation, intent to be married, and public portrayal as a married couple. |
| Registration | Some states require couples to register their common-law marriage. |
| Divorce process | Filing a formal petition with the court, understanding state-specific residency and divorce requirements, and obtaining a judgment of divorce. |
| Validity | Common-law marriage is only recognized in a few states, and requirements vary by state. |
| Remarriage | Bigamy laws apply; a new marriage before legally ending the previous one is illegal. |
| Child custody | Legal paternity must be established for child custody or support arrangements. |
| Separation | Recognition of common-law separation varies by state. |
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What You'll Learn
Proving a common-law marriage existed
The process of ending a common-law marriage is similar to ending a formal marriage. If a common-law couple decides to split up, they must file for divorce. However, before initiating the divorce process, a common-law married couple seeking to divorce must first prove that they are married under the laws of that state. This is because common-law marriages are not formally established through a marriage license or ceremony, making it difficult to prove that a couple is married under common law.
To prove a common-law marriage, you must show evidence of conduct showing an intent to be married. This can include a written agreement signed by both parties expressing their mutual intent to be married, as well as evidence that you mutually assumed the responsibilities of a marriage. This may include sharing income and expenses, leasing or owning a home together, raising children together, or contributing to the upkeep of your home. A judge will consider all the circumstances and decide whether, on the whole, the couple lived and acted like a married couple.
In some states, couples can register their common-law marriage by filing a declaration with the county clerk. For couples that choose not to declare their common-law marriage, other documents may be requested to prove the marriage. These documents may include lease agreements, tax returns, insurance policies, bank statements, loan documents, mortgages, credit card accounts, deeds showing title to property, and affidavits. Affidavits are written statements in which you swear under oath that the statement is true. Personal affidavits can include the date and location where the couple mutually agreed to become spouses, previous marriages, and any other details that will help show a spousal relationship. Friend and family affidavits from people familiar with the relationship can also be helpful in proving a common-law marriage.
It is important to note that the requirements for common-law marriage vary by state, and not all states recognize common-law marriages. Some states only recognize common-law marriages established before a certain date or in other states. Therefore, it is essential to understand the specific laws and requirements of your state when attempting to prove a common-law marriage.
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State recognition of common-law marriage
Common law marriage, also known as sui juris marriage, informal marriage, marriage by habit and repute, or marriage in fact, is a form of irregular marriage that is currently recognised in a handful of states in the US. These include Alabama, Colorado, Florida, Georgia, Indiana, Ohio, Pennsylvania, Texas, and Utah, though the latter is less clear.
The requirements for common law marriage are set by the states, and can vary significantly. Some common features include:
- Partners must not have been married to someone else before the common law marriage began.
- Both parties must have been of legal marriage age.
- Both parties must have lived together for a period defined by the state.
- Both parties must have intended to live as a married couple.
- Both parties must have portrayed themselves as married to the world.
Some states require couples to register their common law marriage by filing a declaration with the county clerk. For couples that choose not to declare their common law marriage, documents such as lease agreements, tax returns, and insurance policies may be requested to prove the marriage.
If a common law couple decides to separate, they must file for divorce. The process is the same as for a conventional marriage, though a common law married couple seeking to divorce must first prove they are married under the laws of that state. All states allow spouses to use a no-fault divorce process, meaning neither party needs to prove that their spouse was at fault.
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Legal divorce requirements
The first step to ending a common-law marriage is to determine whether your union was legally recognised as such. Common-law marriages are only recognised in a handful of US states, and the requirements for recognition vary. Generally, you must live together for a period defined by your state, intend to live as a married couple, and portray yourselves as married publicly.
If your common-law marriage is valid, you must then follow the steps to obtain a traditional divorce. This begins with filing a formal petition with the court in the state where you live. You must understand your state's residency and other divorce requirements. All states allow for a no-fault divorce, which is generally faster, less expensive, and less stressful than a contested, fault-based divorce.
The biggest difference between a common-law divorce and a traditional divorce is that common-law marriages lack a paper trail, making it difficult to prove that a couple is married under common law. This proof of marriage is a necessary first step to obtaining a divorce. This proof can include a written agreement showing mutual intent to be married, witness testimony, and documents indicating shared surnames or references to each other as spouses.
Once the court has reviewed and approved all aspects of the divorce, including property division, alimony, and child custody arrangements, a judgment of divorce will be granted, formally and legally ending the marriage. Both parties are then free to remarry.
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Child custody and support
Ending a common-law marriage involves many of the same legal and financial complexities as a traditional marriage, including the distribution of assets and liabilities, alimony, and child custody and support.
Child Custody
In the case of a common-law marriage with children, legal paternity must first be established to decide on child custody and support. While children born during a marriage are legally considered the offspring of both partners, for unmarried couples, paternity must either be acknowledged or established through adoption.
Once paternity is established, child custody is negotiated in much the same way as in any other divorce case. The courts will always consider the best interests of the child as the first priority when establishing a custody arrangement between parents. The court will take into account factors such as the child's wishes (if they are old enough), which parent was the primary caregiver during the marriage, any disabilities that might impair a parent's ability to care for the child, and any history of domestic violence.
If one parent is deemed unfit, the other parent will likely be awarded sole custody. The unfit parent would then be granted partial custody or visitation rights on weekends, school breaks, and holidays.
Child Support
Common-law spouses have the same rights and obligations as married spouses to care for children, including the right to custody and the obligation to provide financial support. If the parents cannot agree on child support, a court can order support payments based on federal and provincial guidelines. Child support is calculated the same way for married and unmarried parents, using the Child Support Guidelines.
It is in the best interest of both parents to establish a formal custody and support agreement to protect themselves and their children. Failing to do so can result in difficulties over time for both parties.
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Remarriage considerations
If you are considering remarriage after ending a common-law marriage, it is important to be aware of the legal implications that may arise. Firstly, ensure that your previous common-law marriage has been legally terminated through a divorce process. This is required in any state that recognizes common-law marriage and may involve unique legal considerations as common-law marriages lack a formal paper trail.
Once divorced, you are free to remarry, but be mindful that this may trigger new legal considerations, especially if you or your new spouse have children from previous marriages. In some cases, remarriage can affect an individual's right to spousal support or alimony, although this varies depending on local laws and the original settlement agreement.
If you or your new spouse have children, understand that the new spouse does not automatically gain parental rights over the child from the previous marriage. If stepparent adoption is desired, a legal process involving applications, reviews, and background checks is typically required. Consent from both legally recognized parents is often necessary, but requirements differ across jurisdictions.
Additionally, remarriage can impact Social Security benefits, especially if they are based on an ex-spouse's work record. Survivor benefits may continue if remarriage occurs at a later age, and certain criteria are met. Upon reaching a certain age, individuals may have the option to choose between drawing retirement benefits from their new spouse's record or continuing to receive survivor benefits from the previous spouse.
Finally, remarriage often involves combining assets, such as real estate, businesses, or investment portfolios. Prenuptial agreements can be utilized to set expectations regarding spousal support, property division, and inheritance rights in the new marriage.
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Frequently asked questions
To end a common-law marriage, you need to get a legal divorce through a court. The process is similar to that of a traditional marriage, and you must prove that your relationship qualifies as a common-law marriage.
If you're in a state that doesn't recognize common-law marriage, you would have to prove the existence of the marriage in a court.
First, you must establish the validity of your common-law marriage. This may include providing evidence of cohabitation, shared finances, or public acknowledgment of the relationship. Then, you can file a formal petition with the court and follow the legal divorce process.
Common-law marriages do not have a marriage license, so couples must prove they were married to obtain a divorce. Additionally, issues like child custody and support may arise, requiring legal paternity to be established.
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