Anaya Nolan
Common law marriages, also known as informal marriages, are marriages that are recognised by a court, despite the spouses not having complied with the requirements of a statutory marriage, such as obtaining a marriage license. Common law marriages are not recognised in all states, and the process for divorce varies depending on the state. However, there are some general steps that can be followed when seeking a divorce from a common law marriage. Firstly, individuals must typically demonstrate the validity of their common law marriage through evidence such as cohabitation, shared finances, or public acknowledgment of the relationship. Once the marriage has been validated, a formal petition for divorce must be filed with the court, outlining reasons for the divorce and addressing pertinent issues such as property division, alimony, and child custody. All states in the US offer a 'no-fault' divorce option, where neither party is legally required to prove that their spouse was at fault for the dissolution of the marriage.
| Characteristics | Values |
|---|---|
| Recognition | Common law marriages are recognised in some states, such as Texas and Colorado. |
| Proof of Marriage | Couples must prove they were married before they can divorce. Evidence may include cohabitation, shared finances, public acknowledgment, joint tax returns, insurance policies, or shared property. |
| Divorce Process | The divorce process is similar to that of a traditional marriage, including the distribution of assets and liabilities, and issues such as child custody. |
| No-Fault Divorce | All states offer a 'no-fault' divorce option, where neither party needs to prove fault. |
| Remarriage | Individuals cannot remarry without divorcing their common-law spouse, as this would violate bigamy laws. |
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What You'll Learn
Proving the existence of a common-law marriage
Cohabitation and Mutual Assumption of Responsibilities
One key factor is cohabitation, which means living together in the same residence. While cohabitation alone may not be sufficient, it is generally a minimum requirement. In addition, you must demonstrate that you mutually assumed the responsibilities of a marriage. This can include sharing income and expenses, owning or leasing a home together, raising children together, or contributing to the upkeep of your shared home.
Public Presentation as a Married Couple
It is essential to show that you publicly presented yourselves as a married couple. This can include referring to each other as "husband," "wife," or "spouse" in your community, instructing friends and family members that you are married, and participating in community activities as a family.
Documentation and Joint Ownership
Various types of documentation can help prove a common-law marriage, such as bank statements showing joint ownership of accounts, deeds to jointly owned property, insurance policies naming each other as beneficiaries, birth certificates listing both individuals as parents, and employment records listing the partner as a spouse or dependent.
Affidavits and Testimonies
Affidavits or testimonies in court from one or both partners swearing to the existence of the informal marriage and describing the nature of the relationship can be powerful evidence. Additionally, affidavits from friends, family, or neighbours corroborating the couple's reputation as a married couple and their knowledge of the relationship can be valuable.
State-Specific Requirements
It is crucial to understand the specific requirements of the state in which the common-law marriage is being established. Some states may require evidence of cohabitation for a stipulated period, while others may have different criteria. Additionally, some states may only recognize common-law marriages established before a certain date or under specific circumstances.
In summary, proving a common-law marriage involves presenting a comprehensive body of evidence demonstrating cohabitation, mutual assumption of marital responsibilities, public presentation as a married couple, and compliance with state-specific requirements. Seeking guidance from a knowledgeable family lawyer can be invaluable in navigating the complexities of proving a common-law marriage.
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Understanding the legal requirements for divorce in your state
In states like Texas, which recognises common-law marriages, the divorce process closely mirrors that of a traditional marriage. Couples need to file a petition for divorce with the court and serve their spouse. The court will then decide on issues such as property division, child custody, and spousal support. Texas law also stipulates a two-year statute of limitations for filing court proceedings to prove the existence of a common-law marriage.
In other states, such as Colorado, common-law marriages are also recognised and treated the same as statutory marriages when it comes to divorce. To obtain a divorce, one spouse typically files for divorce while arguing the existence of a common-law marriage. If the court determines that a valid common-law marriage exists, it will follow the same process as a statutory marriage divorce.
It's worth noting that not all states recognise common-law marriages, and even in states that have abolished it, common-law marriages from before the abolition date may still be valid. Additionally, if a couple moves to a state that doesn't recognise common-law marriages, their marriage is still valid if it was established in a state that did. Understanding the specific laws in your state is essential, as they can vary, and consulting with a legal professional is advisable to navigate the unique challenges of dissolving a common-law marriage.
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Filing a formal petition for divorce
The process of filing a formal petition for divorce for a common-law marriage is similar to that of a traditional marriage. However, there are some unique considerations and challenges to be aware of. Here is a step-by-step guide on how to file a formal petition for divorce from a common-law marriage:
- Validation of Common-Law Marriage: Before initiating the divorce process, you must establish the validity of your common-law marriage in a court of law. This involves presenting evidence such as cohabitation, shared finances, joint tax returns, insurance policies, or public acknowledgment of the relationship.
- Filing the Petition: The divorce process officially begins with the submission of a formal petition, also known as the "original petition for divorce" or "complaint for divorce," to the court. This petition is typically filed by one spouse, known as the "petitioner" or "filing spouse," and outlines their desire to dissolve the marriage. It includes basic information about the marriage, such as the full legal names of both spouses, the date and location of their union, and the date of separation. It also addresses specific issues requiring the court's attention, including child custody arrangements, property division, alimony or spousal support, and the distribution of assets and liabilities.
- Serving the Respondent: Once the petition is filed, it must be served to the other spouse, known as the "respondent" or "responding spouse." This involves officially notifying them of the divorce proceedings. Depending on the jurisdiction, the petition can be served through various methods, including personal service from a neutral adult, a professional process server, sheriff, or authorized person for a separate fee. Some states also allow service by mail with a return receipt to ensure the respondent receives the documents.
- Responding to the Petition: The respondent has a specific timeframe, typically around 20 to 30 days, to file a formal response, known as an "answer." In their response, they can agree or disagree with the statements made by the petitioner and raise any counterclaims or requests. If the respondent fails to respond within the given timeframe, the court may grant a default judgment, approving the divorce and its terms as requested by the petitioner.
- Negotiation and Mediation: If both spouses are open to negotiation and mediation, they can attempt to reach an acceptable agreement on the terms of the divorce. This process may involve the assistance of lawyers or mediators. If negotiation and mediation fail, the divorce case may proceed to trial.
- Trial and Court Decision: If the case goes to trial, both parties will present their arguments and requests to the court. The court will then make decisions on any unresolved issues, such as child custody, property division, and financial matters, if an agreement cannot be reached between the spouses.
It is important to note that the specific rules and procedures may vary depending on the state and local laws governing common-law marriages. Understanding your local laws and seeking legal advice from a qualified professional is crucial when navigating the divorce process for a common-law marriage.
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Deciding on a no-fault or fault-based divorce
The process of ending a common-law marriage is similar to ending a formal marriage. Common-law couples will have to prove to the court that they met the requirements to be considered common-law married. This is important because, if considered common-law married, the couple is subject to the state's community property laws, which means all assets and debts are subject to a fair and equitable split.
When filing for divorce, you'll have to indicate the reason for the divorce, or the "grounds" for the divorce. In some states, divorcing spouses have the option of filing either a "fault-based" or "no-fault" divorce. Other states only allow no-fault divorce. The main difference between the two is that in a fault-based divorce, one spouse claims that something the other did caused the marriage to fall apart.
No-fault divorce is less expensive and less time-consuming than a fault-based divorce because the spouses do not need to prove marital misconduct for the court to grant the divorce. In a fault-based divorce, the court will grant the divorce if at least one spouse alleges and proves that the other spouse's bad behaviour led to the end of the marriage. Fault grounds include cruelty, the physical inability to have sexual intercourse (if this condition existed before marriage but was hidden by the spouse), and adultery.
A spouse can object to a fault-based divorce but cannot prevent the court from granting a no-fault divorce. Objecting to the other spouse's request for a no-fault divorce is itself an irreconcilable difference that would justify the divorce. However, a spouse can prevent a fault divorce by convincing the court that the claims of fault are false.
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Dividing assets and liabilities
When it comes to dividing assets and liabilities, the court will decide how marital property is divided unless the couple can agree on a division. This might require a thorough evaluation of jointly held properties, shared debts, and other financial elements. In some states, such as Ohio, property in a divorce is generally divided between the parties 50/50. This includes any property the couple obtained together during the marriage, and in longer marriages, separate property brought in by one individual may still be considered marital property and thus divided equally. If one spouse incurred educational debts (student loans), this may be separate from the joint debt, depending on state law.
If the court feels that either spouse has engaged in financial misconduct during the divorce litigation, the offending spouse may be ordered to pay more than 50% of the marital assets as punishment. The court will also not usually accept terms that address child custody or child support before the filing of a divorce or dissolution action.
In some states, such as Texas, if court proceedings are not filed within two years of separation, state law presumes a common-law marriage never existed unless proven otherwise. To avoid obligations like alimony or property division, a partner may deny the existence of the common-law marriage, so it is important to be able to present evidence of cohabitation, shared finances, or public acknowledgment of the relationship.
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Frequently asked questions
A common-law marriage is a marriage that is recognised by a court as valid, despite the couple not having complied with the requirements of a statutory marriage, such as obtaining a marriage license.
To prove a common-law marriage, you must demonstrate the validity of your union. This can be done by presenting evidence of cohabitation, shared finances, or public acknowledgment of the relationship. Other evidence includes joint tax returns, insurance policies, or shared property.
The process of divorcing a common-law marriage is similar to that of a traditional marriage. It involves filing a formal petition with the court, outlining the reasons for the divorce and addressing issues like property division, alimony, and child custody.
The primary difference is that common-law married couples must prove they were married before they can divorce. Additionally, common-law marriages do not have a paper trail, making it more challenging to prove the existence of the marriage.
Common-law marriages are only recognised in a small number of states, and the laws vary. It is important to understand the specific requirements and laws of your state regarding common-law marriages and divorces.
