Keith Mack
Common-law marriages are legally recognised in only eight US states and the District of Columbia. While the specifics vary by state, the general requirements for a common-law marriage are cohabitation, mutual intent to be married, and public portrayal as a married couple. To end a common-law marriage, the couple must first establish the validity of their union in a court of law, which can be challenging if they have moved to a state that does not recognise common-law marriages. Once the marriage is proven, the divorce process closely mirrors that of a traditional marriage, including the division of property and debts, alimony, and child custody.
How to Get Out of a Common Law Marriage
| Characteristics | Values |
|---|---|
| Common law marriage recognition | Only eight states and the District of Columbia recognize common-law marriages as legal, although some only do so for inheritance purposes. |
| Common law marriage requirements | The two people must live together (cohabitation), intend their relationship to be a marital one, and be seen as a married couple by the community. |
| Ending a common law marriage | If the marriage is not proven, both sides can walk away and act as though it never existed. If the marriage is proven, the couple must go through the same divorce process as a legally married couple. |
| Proving a common law marriage | A written agreement showing mutual intent to be married, witness testimony, shared surnames, and references to each other as spouses may be required to prove a common law marriage in court. |
| Divorce process | The couple must file a petition for divorce with the court and serve the spouse. The judge will then make decisions about property division, child custody, and spousal support. |
| Common law marriage dissolution | If a couple moves from a state that recognizes common law marriage to one that does not, the new state will still recognize the marriage and have jurisdiction to dissolve it. |
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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 marriage is currently recognised in seven states and the District of Columbia.
To prove a common-law marriage, you must show evidence that you and your partner meet the legal requirements for a valid common-law marriage. This includes:
- Both partners being at least 18 years old (or with parental consent if younger) and having the mental capacity to understand the commitment and consequences of marriage.
- Neither partner being married to anyone else at the time, either informally or formally.
- Both partners intending for their relationship to be a marriage.
- The couple living together and presenting themselves as a married couple in public.
Documents that can be used to prove a common-law marriage include:
- Affidavits: a written statement sworn under oath, including personal affidavits stating that the couple is married and friend and family affidavits from those familiar with the relationship.
- Lease agreements, tax returns, and insurance policies.
- Property deeds.
- Official documents signed by both partners declaring their intention to marry.
- Declaration of Informal Marriage: a document signed by both partners and witnessed by a county clerk, which serves as valid proof of marriage.
It is important to note that the specific requirements and evidence needed to prove a common-law marriage may vary depending on the state in which the couple resides. For example, Texas law places a two-year statute of limitations on court proceedings to prove a common-law marriage after separation.
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Divorce procedure
The process of ending a common-law marriage can be complex and may require legal assistance. Common-law marriages are only recognised in a handful of states, and the specific procedures for divorce can vary across these states. However, there are some general steps and considerations that are common across most jurisdictions.
Firstly, it is essential to establish the validity of the common-law marriage in a court of law. This involves presenting evidence of cohabitation for a specified period, mutual intent to be married, and public portrayal as a married couple. This may include witness testimonies, documents indicating shared surnames or references to each other as spouses, and proof of cohabitation.
Once the court determines the validity of the common-law marriage, the divorce process can begin. This typically involves filing a formal petition with the court, outlining the reasons for the divorce and addressing pertinent issues such as property division, alimony, and child custody. It is important to understand the residency and divorce requirements of your state.
All states in the U.S. offer a 'no-fault' divorce option, which means neither party needs to prove that the other spouse was at fault for the dissolution of the marriage. This process is generally faster, less expensive, and less stressful than a contested, fault-based divorce.
It is important to note that if you are living in a state that does not recognise common-law marriage, you may face challenges in proving the existence of the marriage in court. In such cases, it is advisable to seek guidance from an experienced family law attorney who can help navigate the specific laws and requirements of your state.
Additionally, there are some proactive steps that can be taken to avoid being designated as having a common-law marriage, such as not holding oneself out as married, not introducing your partner as a spouse, keeping finances separate, and having a written agreement that explicitly states the intention to not be considered married under common law.
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Child custody, child support, and spousal support
If you want to end your common-law marriage, you may need to follow the steps to obtain a traditional divorce before you can remarry. However, this depends on the laws of your state or country. For example, in Texas, if a common law marriage is established, then the spouses hold all of the same legal rights as a couple who have a marriage license. This means that common law couples must go through the divorce process to end their marriage. On the other hand, if a common law marriage is not established, the couple can simply walk away and act as though the marriage never existed. However, this can be problematic if there are children, property, or assets involved.
If you do need to obtain a divorce, you can begin the process by filing a formal petition with the court where you live. It's important to understand your state's residency and other divorce requirements. All states allow spouses to use a no-fault divorce process, meaning you don't need to prove that your spouse was at fault for the divorce. This process is usually faster, less expensive, and less stressful than a contested, fault-based divorce.
Once the divorce process has begun, the judge will make decisions about property division, child custody, and spousal support. Common-law spouses have the same rights and obligations as married spouses to care for children. This includes rights to custody of children and obligations to financially support them. If the parents cannot decide on who will have custody of the children, the courts will decide based on what is in the children's best interest. If the parents cannot agree on child support, a court can order support payments based on federal and provincial guidelines.
Spousal support is one of the most complex areas of family law. Many factors need to be considered to determine an amount that is fair and appropriate in each case. In many cases, people pay both child and spousal support at the same time. However, the Divorce Act prioritizes the payment of child support. This means that if there is not enough money to pay both, money is directed towards child support first. The duration of spousal support will be based on the facts of the case, such as the length of time the spouses lived together or their ages at the time of separation. In some cases, spousal support may only be paid for a limited amount of time, while in other cases, it may continue unless there is a change in circumstances.
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Property division
To end a common-law marriage, the couple must first establish the validity of their union in a court of law. This involves presenting evidence of cohabitation for a defined period, mutual intent to be married, and public portrayal as a married couple. Once the court determines the validity of the common-law marriage, the couple must follow the steps for a traditional divorce, including filing a formal petition with the court.
When it comes to property division in a common-law marriage separation, it is important to note that the laws and procedures may vary depending on the jurisdiction. In some places, common-law couples are not entitled to the equal division of family property as married couples are. Instead, each partner in a common-law relationship is generally entitled to what they brought into the relationship or acquired individually during the union. Sorting out who owns what, especially if the couple has been together for a long time, can be challenging. However, the general rule is that items purchased during the relationship belong to the person who paid for them.
In certain jurisdictions, common-law couples may not be legally required to divide property acquired during their time together. However, if one partner feels they have contributed significantly to the value of an asset, such as a shared home, they may seek recourse through a claim for a constructive trust to address unjust enrichment. This involves proving that the partners were engaged in a joint family venture and that one partner is retaining a disproportionately large share of the profits.
To avoid disputes over property division, common-law couples can consider signing a cohabitation agreement. This is a legal document that outlines the terms in the event of a separation, including the division of assets. Both partners must sign the agreement in front of a witness for it to be valid. If the couple separates and disagrees with the terms, they can negotiate changes, but these must also be made in writing and signed in front of a witness. If an agreement cannot be reached, a court may have to intervene.
It is important to consult with a lawyer who can provide personalized advice and help protect your interests during the separation process.
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Inheritance rights
In states that recognise common-law marriages, such as Texas, a common-law spouse has the same rights as a formally married spouse when it comes to inheritance. They can inherit from the decedent's estate, regardless of whether the decedent had a valid will. Texas law also grants the surviving spouse homestead rights, allowing them to live in the primary residence for the rest of their life, and the right to claim certain personal property as exempt from creditors' claims.
Proving a common-law marriage is crucial for inheritance rights. If the marriage is contested, evidence such as a signed declaration of informal marriage, joint tax returns, insurance policies, employer records, and witness testimonies may be required. The specific evidence needed can vary depending on the state and the circumstances of each case.
It is important to note that not all states recognise common-law marriages, and this can create challenges for inheritance. If a couple lives in a state that does not legally recognise common-law marriage, the surviving partner may not be entitled to any inheritance unless there is an estate plan in place. Therefore, it is essential to understand the laws and requirements of the state in which the common-law marriage was established to ensure that inheritance rights are protected.
To end a common-law marriage, one must follow the traditional divorce process, which may vary by state. While it is possible to simply walk away and treat the marriage as if it never existed, this can lead to issues regarding child custody, child support, spousal support, and property division. Consulting with a family law attorney is advisable to navigate the complexities of ending a common-law marriage and protecting one's rights, especially in matters of inheritance.
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Frequently asked questions
A common-law marriage is a legal marriage without a ceremony or other formalities. It is created only if certain specific legal requirements are met.
To prove a common-law marriage, you must show that you and your partner lived together, agreed that you were married, and held yourselves out to others as a married couple. This can include presenting evidence of cohabitation, shared finances, or public acknowledgment of the relationship.
To get out of a common-law marriage, you must follow the legal divorce procedures required by the state in which you live. This typically involves filing a formal petition with the court and may include issues such as property division, alimony, and child custody.
The primary difference is that common-law married couples must prove they were married in order to get divorced, as there is no marriage license or paper trail. Additionally, the requirements for common-law marriage are set by the states, and most states do not recognize common-law marriage.
If you separate from a common-law marriage without obtaining a valid divorce, you are still legally married and cannot marry another person without violating bigamy laws.
