Cameron Miranda
Common-law marriages are legally recognised in only eight US states and the District of Columbia. In the event of a separation, common-law marriages are dissolved in a similar way to traditional marriages. However, there are some unique complexities. To dissolve a common-law marriage, a couple must go through the same legal procedures as a licensed marriage, including filing a divorce petition and addressing issues such as child custody, child support, spousal support, visitation, and the division of property. The first step is to determine if the common-law marriage was valid. If the marriage is deemed valid, the couple must follow the divorce process in their state, which may include filing additional forms such as an 'Income and Expense Statement' and a 'Statement of Property and Debt'.
| Characteristics | Values |
|---|---|
| Number of states that recognize common law marriage | 8 states and the District of Columbia |
| Legal procedure | Same as dissolving a formal marriage |
| Legal issues to be addressed | Child custody, child support, spousal support, visitation, division of property |
| Evidence of common law marriage | Joint tax returns, insurance policies, joint bank accounts, retirement plans, property held together |
| Evidence of intent to be married | Written agreement signed by both parties |
| States that recognize common law marriage | Texas, Kansas, Colorado |
| Separation recognized by law | Kansas |
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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 ceremony or marriage license. Common-law marriages are currently recognised in seven states and the District of Columbia, with each state having its own rules for proving such a marriage.
To prove a common-law marriage, couples must generally satisfy the same requirements as those for a formal marriage in their state. For example, in most states, both spouses must be at least 18 years old, not already married, and have the mental capacity to understand the commitment and consequences of marriage.
In addition, couples must prove that they:
- Established their marriage while living in a state that recognised common-law marriages
- Meant for their relationship to be a marriage
- Lived together and held themselves out in public as a married couple
Documents that can be used to prove a common-law marriage include:
- Affidavits: a written statement in which you swear under oath that your statement is true. There are two types of affidavits: personal, in which you declare that you and your partner are married, and friend and family, in which people who know you well declare that they are familiar with your relationship as a married couple
- Lease agreements, tax returns, and insurance policies
- Property deeds
- Declaration of Informal Marriage: a document signed by both partners declaring their intention to marry
If there is a dispute over whether a common-law marriage existed, 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 types of proceedings.
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State recognition
The process of dissolving a common-law marriage varies depending on state recognition. Common-law marriages are only recognised in eight states and the District of Columbia, and even then, some states only recognise them for limited purposes, such as inheritance. These states include:
- Colorado: Requires cohabitation, mutual agreement, and public representation as married.
- Iowa: Mandates intent to marry, continuous cohabitation, and public declaration.
- Kansas: Requires capacity to marry, a common residence, and public acknowledgment.
- Montana: Involves the exchange of consent, cohabitation, and a reputation as a married couple.
- New Hampshire: Recognises common-law marriage for inheritance purposes only.
- South Carolina: Accepts common-law marriage through intent, cohabitation, and representation.
- Texas: Requires a signed declaration or evidence of agreement, cohabitation, and public acknowledgment.
- Utah: Recognises common-law marriages retroactively by court order based on intent, cohabitation, and reputation.
In states that recognise common-law marriages, dissolving them typically requires formal divorce proceedings, similar to traditional marriages. This includes filing a divorce petition and serving the spouse. Couples must undergo the same asset division, spousal support, and child custody processes as formally married couples.
In Texas, for example, dissolving a common-law marriage mirrors the formal divorce process. Couples must file a divorce petition and initiate legal proceedings within two years to establish the marriage's validity. If no legal action is taken within this timeframe, it is assumed that no legal marriage exists.
It is important to note that the recognition of common-law marriages across state lines can be complex. Some states do not recognise these marriages, which may lead to difficulties if a couple relocates. In such cases, maintaining documentation and considering formalising the marriage with a license is advisable for legal protection.
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Divorce procedures
The first step in dissolving a common-law marriage is to determine its validity. Common-law marriage is only recognised in a handful of states, and the requirements vary between them. For instance, in Texas, a couple must agree to be married, live together as husband and wife, and present themselves as such to the public. In some states, couples must register their common-law marriage.
If the marriage is deemed valid, the divorce process is similar to that of a traditional marriage. This includes addressing legal issues such as child custody and support, spousal support, visitation rights, and the division of property and debt.
To initiate the divorce process, a formal petition or request must be filed with the court in the state where the couple resides. The petitioner (the spouse initiating the divorce) must provide a written "petition" detailing the case, the respondent (the other spouse), and the desired outcome. This petition must be signed under oath before a notary public.
In addition to the petition, other forms are typically required, such as an Income and Expense Statement, a Statement of Property and Debt, a Parenting Plan (if children are involved), and a Certificate of Dissolution. These forms are usually available for download from the court's website.
It is important to note that the divorce process can vary depending on the state's specific laws and requirements. For instance, some states may require proof of meeting the criteria for a common-law marriage. Seeking the services of an experienced divorce lawyer in your state is advisable to navigate the complexities of the divorce process.
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Child custody
A common-law marriage is a legal status that exists in only eight states and the District of Columbia. Two states recognize domestic common-law marriage after the fact for limited purposes only. Common-law marriage is also referred to as informal marriage, marriage by habit and repute, and marriage in fact.
To be considered a common-law marriage, couples must live together for a period defined by their state, intend to live as a married couple, and portray themselves as married to the world. Some states require couples to register their common-law marriage.
If a common-law marriage is dissolved, the legal process is the same as that of a formal marriage. All the same legal issues need to be addressed, such as child custody and child support, spousal support, visitation, and the division of property.
If parents cannot decide on who will have custody of the children, the courts will decide based on what is in the children's best interests. Parents can negotiate a settlement to avoid unnecessary litigation, but the court will ultimately have to sign off on any agreements made regarding the children.
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Property division
Common-law marriage is a legal status that exists in only eight states and Washington, D.C. Texas is one of the states that recognizes common-law marriage. If a common-law marriage is established in Texas, the spouses hold all the same legal rights as a couple who have a marriage license. This means that, in the event of a divorce, common-law couples must go through the same divorce process as a traditional marriage.
In Texas, common-law couples are subject to community property laws, which means all assets and debts are subject to a fair and equitable split. The process of determining which assets or debts are marital and which are separate relies on detailed records, such as deeds, bank statements, and other financial documents.
In Ontario, common-law couples are not entitled to the equalization of their family property. Each partner in a common-law relationship is entitled only to whatever they brought into the relationship or acquired during it. However, if one has been in a long common-law relationship and feels that they have contributed extensively to the value of a certain asset that belongs to their partner, they can make a claim for a constructive trust to remedy unjust enrichment.
In the U.S., judges may consider factors such as the length of the marriage, each spouse's earning capacity, direct or indirect contributions to the household, and any other circumstances that influence fairness when dividing property.
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Frequently asked questions
A common-law marriage is a legal status that exists in only eight states and Washington, D.C. A couple can be considered common-law married if they live together for a period defined by their state, intend on living as a married couple, and portray themselves as married to the outside world.
The process of dissolving a common-law marriage is similar to that of a formal marriage. It requires filing a divorce petition and all other necessary documents with the family court in the state in which the parties live. Common-law couples will have to prove to the court that they met the requirements to be considered common-law married.
The requirements to be considered common-law married vary from state to state. In Texas, for example, couples must agree to be married, live together as husband and wife, and hold themselves out to the public as husband and wife. Some states, like Colorado, also require couples to register their common-law marriage.
Dissolving a common-law marriage involves addressing the same legal issues as a formal marriage, such as child custody and support, spousal support, visitation, and the division of property and debts. Obtaining a divorce is the only way to ensure that your interests are protected and to avoid problems down the road.
