Keith Mack
Common-law marriages are legally recognised in only eight US states and the District of Columbia. If a couple can prove their common-law marriage is valid, they must follow the same legal procedures to dissolve it as they would a formal marriage. This includes filing a divorce petition and addressing legal issues such as child custody, child support, spousal support, visitation, and the division of property. The process can be complex, and individuals may wish to consult a family lawyer.
| Characteristics | Values |
|---|---|
| Number of states recognizing common law marriages | 8 states and the District of Columbia |
| Requirements for common law marriage | Cohabitation, intention to be married, and portraying the relationship as a marriage |
| Dissolution process | Similar to divorce, including filing a petition and addressing issues such as child custody and property division |
| Jurisdiction | The state where the couple resides has jurisdiction to dissolve the marriage |
| Common issues | Child custody, child support, spousal support, visitation, and property division |
| Additional forms | Income and Expense Statement, Statement of Property and Debt, Parenting Plan, Filing Information Sheet, Certificate of Dissolution, Judgment of Dissolution of Marriage |
| Lawyer's role | Explaining state law, assisting with filing the petition, and conducting an investigation |
| Recognition of common law marriage | Varies by state; some states only recognize for limited purposes, such as inheritance |
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What You'll Learn
Common law marriage validity
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that results from the couple's agreement to consider themselves married, followed by cohabitation, rather than through a statutorily defined process. The validity of a common-law marriage depends on the laws of the state or country in which it was formed.
In the United States, common-law marriage has existed since the colonial era, when America was a colony of England. Today, common-law marriage is only recognized as valid in a handful of states, including Texas, Arizona, and the District of Columbia. The specific requirements for establishing a common-law marriage vary by state, but some common elements include:
- Cohabitation: Living together for a period of time defined by the state.
- Intent: Both parties must intend to be married and hold themselves out to the community as a married couple.
- Community Recognition: The couple is generally recognized as married by their friends, family, and the community.
To determine if a common-law marriage is valid, a court may consider evidence such as the length of cohabitation, the couple's public behaviour, and any written agreements or documentation indicating their mutual intent to be married. Some states may also require registration of the common-law marriage.
If a common-law marriage is valid, the couple must go through the same legal procedures to dissolve the marriage as they would for a formal marriage. This includes filing a divorce petition with the family court in the state in which they live and addressing issues such as child custody, spousal support, and division of property. The legal process for dissolving a common-law marriage is generally the same as for a traditional marriage, and the couple must follow the specific requirements of their state or country of residence.
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Divorce proceedings
The process of dissolving a common-law marriage is similar to that of a traditional marriage. However, it can be more complex, as the first step is to determine if your common-law marriage was valid. This is because common-law marriage is only recognised in eight states and the District of Columbia, and some of these states only recognise it for specific purposes, such as inheritance.
If your common-law marriage is deemed valid, you must then file a divorce petition with the family court in the state in which you live. This petition must include certain information, such as the grounds for dissolution, and be verified by a notary public. You must also file additional forms, such as an Income and Expense Statement, a Statement of Property and Debt, and a Parenting Plan if you have children.
It is important to understand your state's residency and divorce requirements, as these vary. For example, some states require couples to register their common-law marriage. You may wish to contact a family law lawyer to help you understand the specific requirements in your state.
All states allow for a no-fault divorce, which is usually faster, cheaper, and less stressful than a contested divorce. Once the petition has been filed, the respondent has 30 days to respond with a written answer. If no answer is received, the respondent is in default.
The legal process for dissolving a common-law marriage is the same as for a formal marriage, and all the same issues need to be addressed, including child custody and support, spousal support, visitation, and the division of property.
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Child custody
In the context of child custody, there are two primary types: legal custody and physical custody. Legal custody pertains to the right and responsibility of making important decisions for the child, such as those related to healthcare, education, and welfare. Physical custody, on the other hand, refers to the parent with whom the child resides most of the time.
Both parents have equal rights to their children until a court order is in place. Joint legal custody allows both parents to share the rights and responsibilities for making these important decisions. In contrast, sole legal custody grants this right to only one parent. The determination of custody arrangements is made based on the best interests of the child, taking into account factors such as the child's physical safety, emotional security, and developmental needs.
In some jurisdictions, like Nigeria, a wife can seek custody of her children under statutory, customary, or Islamic marriages, and this can be done with or without the dissolution of the marriage. The Matrimonial Causes Act and the Child's Rights Act govern custody matters in statutory marriages, emphasising that custody is determined based on the child's best interests.
In the Philippines, child custody reflects a balance between parental rights and the child's best interests. The Family Code provides foundational rules, but modern statutes and international treaties have shifted the focus to be more child-centred. Courts consider factors like age, developmental needs, and the child's physical, emotional, moral, and educational welfare.
Regardless of the jurisdiction, it is essential to consult with a lawyer to understand the specific laws and procedures relevant to your situation.
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Property division
In the United States, common-law marriage is only recognised in eight states and the District of Columbia. Of these, some states only recognise common-law marriage for limited purposes, such as inheritance.
To dissolve a common-law marriage, the same legal procedures for dissolving a formal marriage must be followed. This includes filing a divorce petition with the family court in the state in which the couple lives.
In terms of property division, common-law couples are not entitled to the equal division of their property and assets, unlike married couples. This means that each partner in a common-law relationship is entitled only to what they brought into the relationship or acquired during it. However, if one has contributed extensively to the value of an asset, such as the family home, they may make a claim for a constructive trust to remedy unjust enrichment.
In Ontario, Canada, a similar principle applies. Common-law couples are not legally required to split property acquired when they lived together. However, if one has contributed to property their spouse owns, they may have a right to part of it. To determine this, one may have to go to court.
To avoid disputes over property division, couples in a common-law relationship can sign a cohabitation agreement, which sets out terms in the event that the relationship ends.
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State recognition
The recognition of common-law marriage varies from state to state across the US. Only a few states allow and recognize common-law marriages today. Eight states and the District of Columbia recognize common-law marriages as legal, while two other states recognize them for limited purposes only.
Some states require couples to register their common-law marriage. If a court determines that a common-law marriage is valid, it must be dissolved through the process of divorce. This involves filing a formal petition with the court where the couple resides, along with other necessary documents. The legal process is similar to dissolving a formal marriage, including addressing issues such as child custody, child support, spousal support, visitation, and division of property.
To prove a common-law marriage, evidence must be provided to demonstrate that both parties intended to be married. This can include a written agreement signed by both parties, exchanging rings, holding a non-religious ceremony, having children, combining funds, or naming each other as spouses on tax returns or insurance policies.
It is important to note that some states have changed their laws regarding common-law marriage recognition. For example, New Hampshire only recognizes common-law marriages that occurred within the state for the purposes of determining an inheritance. Other states, including Georgia, Idaho, Ohio, Oklahoma, and Pennsylvania, only recognize common-law marriages that occurred before a certain date in the 1990s.
If you are seeking to have your common-law marriage recognized or dissolved, it is recommended to consult a family law lawyer to understand the specific laws and requirements in your state.
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Frequently asked questions
A common-law marriage is a legal status that exists in only eight states and the District of Columbia. It is a set of legal rights similar to that of a formal marriage but without the formality of a ceremony. Common-law marriage occurs when two people intend to be married, cohabit as a married couple, and hold themselves out as a married couple.
The law regarding common-law marriage varies from state to state. Commonalities that exist include cohabitation, the intention of a martial relationship, and the community seeing them as a married couple. Some jurisdictions may place additional requirements, such as age requirements.
If a court determines that your common-law marriage is valid, you'll need to follow the steps to obtain a traditional divorce. This includes filing a formal petition with the court where you live, and addressing legal issues such as child custody and support, spousal support, and the division of property.
You'll need to file a formal petition with the court where you live. The petition must be complete and include certain information required by law. You'll also need to file additional forms, such as an Income and Expense Statement, a Statement of Property and Debt, and a Parenting Plan if children are involved.
