Cameron Miranda
Common-law marriages are legally recognised in some states, but not others. This means that the process of divorcing a common-law marriage varies depending on the state. Common-law marriages do not have a paper trail, which can make it difficult to prove a couple is married under common law, a necessary first step to getting divorced. The requirements for common-law marriage are set by the states, not the federal government, and can vary significantly. Generally, common-law marriages are treated the same as statutory marriages when it comes to divorce, but the process is more intricate than simply breaking up.
| Characteristics | Values |
|---|---|
| Recognition of common-law marriage | Varies by state; some states recognize common-law marriages, while others don't |
| Requirements for common-law marriage | Set by states, not the federal government; can include cohabitation, intention to live as a married couple, and public presentation as such |
| Proof of common-law marriage | Evidence of cohabitation, joint bank accounts, tax filings, utility bills, etc. |
| Divorce process | Similar to traditional marriage divorce; requires filing a formal petition, addressing property division, alimony, child custody, etc. |
| No-fault divorce option | Available in all states; neither party needs to prove fault, only stating "irreconcilable differences" or "living separately" |
| Distribution of assets and liabilities | Similar to traditional marriages; equitable distribution is required, evaluating jointly held properties, shared debts, and other financial elements |
| Legal protections | Without a divorce, common-law spouses may not have legal protections or claims to child custody, child support, spousal support, or property division |
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What You'll Learn
Common law marriage recognition
Texas is one of the states that recognises common law marriage. Here, a common law marriage is proven by evidence that the couple cohabited for a stipulated period, intended to live as a married couple, and publicly presented themselves as such. There are two ways to establish a common law marriage in Texas: the first is to sign a "declaration of informal marriage" with the county clerk's office. The second is to follow the statutory requirements of the Uniform Marriage Act under C.R.S. § 14-2-101 through § 14-2-113.
Colorado is another state that recognises common law marriage. Here, the determination of a common law marriage "turns on issues of fact and credibility", and district courts must hold a hearing to determine whether a common law marriage exists. There is no time limit or requirement for a common law marriage to be recognised in Colorado.
In states that recognise common law marriage, the process of divorce is similar to that of a traditional marriage. However, a key difference is that a common law married couple seeking to divorce must first prove they are married under the laws of that state, despite not having a marriage license. This can be done by providing evidence such as joint bank accounts, tax filings, and utility bills.
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Proving common law marriage
Proving a common-law marriage can be difficult because, by definition, there is no paper trail or marriage certificate. However, proving a common-law marriage is necessary for divorce, as the process is the same as a traditional divorce.
Common-law marriages are only recognised in a small number of states, and the requirements for proof vary between them. For example, in Texas, there is a two-year statute of limitations on court proceedings to prove a common-law marriage. If proceedings are not filed within two years of separation, Texas law presumes the marriage never existed.
In general, common-law couples must show that they were not already married to someone else and that they were of legal marriage age. Some states require couples to live together for a certain period, while in others, cohabitation is not a factor.
Documents that can be used to prove a common-law marriage include:
- Joint bank account statements
- Utility bills in both names
- Insurance policies listing the couple as beneficiaries
- Lease agreements
- Tax returns
- Property deeds
- Affidavits
- Wills or powers of attorney
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Divorce procedure
The divorce procedure for common-law marriages is similar to that of traditional marriages. However, there are some key differences to note. Firstly, it is important to understand that the requirements for common-law marriage vary by state. While some states may require couples to live together for a certain period to be considered married under common law, other states do not consider cohabitation as a factor. Therefore, it is crucial to understand the specific laws of your state.
Validation of Common-Law Marriage
Before initiating the divorce process, couples must establish the validity of their common-law marriage in a court of law. This involves providing evidence of cohabitation for a stipulated period, intention to live as a married couple, and public presentation as such. This step is crucial because, without a marriage license, common-law couples must prove their marital status to the court.
Filing a Formal Petition
Similar to traditional divorce, the process begins with the submission of a formal petition to the court. This petition outlines the reasons for the divorce and addresses pertinent issues such as property division, alimony, and child custody.
No-Fault Divorce Option
All states in the U.S. offer a 'no-fault' divorce option, which means neither party needs to prove fault or provide reasons for the dissolution of the marriage. Couples can simply state irreconcilable differences or living separately for a specified duration, depending on state laws. This option simplifies the process and reduces costs and emotional stress.
Distribution of Assets and Liabilities
As in traditional marriages, common-law couples accumulate assets and liabilities during their union. These must be distributed equitably during the divorce process, which 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.
It is important to note that while some states, like Texas, recognize common-law marriages and require a formal divorce process, other states may not have the same recognition. Therefore, it is essential to seek legal advice specific to your state and situation to understand your rights and the necessary steps to take during a common-law divorce.
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Division of assets
The division of assets in a common-law marriage divorce is a critical aspect of the separation process. Common-law couples, similar to traditionally married couples, accumulate assets and liabilities over time, and these must be addressed during the divorce process. This includes a thorough evaluation of jointly held properties, shared debts, and other financial elements.
The first step in dividing assets is to establish the validity of the common-law marriage. This involves presenting evidence of cohabitation, intention to live as a married couple, and public presentation as such. Once the marriage is validated, the couple can move forward with the divorce process, including the division of assets.
In some states, like Texas, if court proceedings for divorce are not initiated within two years of separation, it is presumed that the common-law marriage never existed, unless proven otherwise. This can impact the division of assets, as without a legal marriage, there may be fewer protections for common-law spouses in terms of property division and spousal support.
During the divorce process, couples can agree upon a mutual division of assets, or if an agreement cannot be reached, the court will decide on their behalf. This may involve evaluating jointly held properties, shared bank accounts, investments, and debts. A financial advisor can be a valuable resource during this process, helping couples understand the potential impact of divorce on their financial situation.
It is important to note that the specifics of common-law marriages and divorces can vary by state. While some states recognize common-law marriages, others may not. As a result, the division of assets may be subject to different laws and regulations depending on the location of the couple. Overall, the division of assets in a common-law marriage divorce aims to ensure a fair and equitable distribution between both parties.
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Child custody
In most cases, both parents want to remain involved in their children's lives, even if they are no longer together as a couple. Joint custody, where both parents share physical and legal custody of the child, has become increasingly common. This arrangement allows children to maintain regular contact with both parents and provides a sense of reassurance that the family is adjusting rather than falling apart. Florida, for instance, has a preference for shared parental responsibility, emphasising the benefits of children having continual contact with both parents.
However, there are situations where one parent may be deemed unfit for joint custody. If there is a history of domestic violence, financial incapability, or other issues that may negatively impact a parent's ability to provide a safe and stable environment, the other parent may be awarded sole custody. In such cases, the unfit parent may still be granted partial custody or visitation rights during weekends, school breaks, and holidays.
When determining child custody, courts may consider the input of both parents, always prioritising the child's best interests. Each parent will typically have an attorney to represent and advocate for their interests, and a trained, impartial mediator may be involved to help guide the decision-making process and facilitate compromises. It is essential for parents to understand the different options available and work with experienced divorce attorneys to reach agreements on custody through mediation or alternative dispute resolution processes.
In the context of common-law divorce, establishing the existence of a common-law marriage may be necessary before determining child custody. This can be challenging due to the lack of a paper trail associated with common-law marriages. However, once the common-law marriage is proven, child custody negotiations proceed similarly to traditional divorce cases.
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Frequently asked questions
Common-law marriage is a marriage that is not formally established through a marriage license or ceremony. The requirements for common-law marriage are set by the states, not the federal government, and can vary significantly.
If you are in a common-law marriage and want to get out of it, you will need to go through a divorce process. The specifics of what constitutes a legal common-law marriage and divorce vary considerably by state.
The first step in getting a common-law divorce is to establish the validity of the common-law marriage in a court of law. This typically involves presenting evidence of cohabitation for a stipulated period, intention to live as a married couple, and public presentation as such.
The next step is to file a formal petition for divorce with the court, outlining the reasons for the divorce and any other pertinent issues such as property division, alimony, and child custody.
The biggest difference between a common-law divorce and a traditional divorce is that common-law marriages do not have a paper trail of a state-issued marriage license. This can make it difficult to prove that a couple is married under common law, which is necessary for getting a divorce.
