Keith Mack
Common-law marriage, also known as informal marriage, is a legally recognised union in some countries and states. The requirements for common-law marriage vary by jurisdiction, but generally, couples must agree to be married, live together, and present themselves as a married couple publicly. Ending a common-law marriage can be complex and typically requires a formal divorce process, including filing a petition with the court and meeting state residency requirements. Without a legal divorce, common-law spouses may face issues with remarriage, asset division, and child custody. To navigate the intricacies of ending a common-law marriage, consulting legal professionals, such as family attorneys or financial advisors, is highly recommended.
| Characteristics | Values |
|---|---|
| Common law marriage recognition | Recognized in some states in the US, Australia, New Zealand, and Canada |
| Establishing common law marriage | Filing a "Declaration of Informal Marriage" with the county clerk's office or fulfilling the requirements outlined in Section 2.401 of the Texas Family Code |
| Ending common law marriage | Filing for divorce or separating without legal proceedings, which may result in issues regarding child custody, child support, spousal support, or property division |
| Proving common law marriage | Providing evidence such as joint tax returns, bank accounts, property ownership, use of the same last name, and statements from friends and family |
| Legal considerations | Consulting with an attorney or legal professional due to the complexity of court proceedings and varying state-specific requirements |
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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 recognized in seven states and the District of Columbia, with recognition varying across states.
To prove a common-law marriage, couples must generally satisfy the same legal requirements as those for a formal marriage. This includes proving that both spouses:
- Are not already married, formally or informally, to anyone else.
- Are at least 18 years old (or have parental consent if younger).
- Have the mental capacity to understand the commitment and consequences of marriage.
In addition, couples must demonstrate a mutual and open assumption of a marital relationship, including:
- Evidence of cohabitation.
- Holding themselves out in public as a married couple.
- An agreement or other official document signed by both partners declaring their intention to marry.
Affidavits, such as personal statements or testimonies from friends and family, can also be used to prove a common-law marriage. Other documents, such as lease agreements, tax returns, and insurance policies, may be requested if no formal declaration of informal marriage was previously filed.
It is important to note that the specific requirements and evidence needed to prove a common-law marriage vary by state. For example, Texas law places a two-year statute of limitations on court proceedings to prove a common-law marriage after a separation. Therefore, it is essential to understand the specific requirements and laws of the state in which the common-law marriage was established.
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Filing for divorce
Ending a common-law marriage is a complex process that may be more complicated than you think. Common-law marriages are not formally established through a marriage license or ceremony, and the process varies by state, as not all states recognize common-law marriages.
If you did not file anything with the clerk, you might not have to file for divorce. You could simply separate. However, if your partner brings a case to court within two years, you will have to prove the existence of a common-law marriage. If the court determines that a common-law marriage existed, the court will divide marital property per community property principles.
If a common-law couple decides to split up, they must file for divorce. The process is similar to ending a formal marriage, and the couple must prove the validity of their common-law marriage in a court of law. This can be done through evidence like cohabitation, shared finances, or public acknowledgment of the relationship. Once the court validates the marriage, the couple can begin the divorce process by filing a formal petition with the court. All states allow spouses to use a no-fault divorce process, meaning neither party is legally required to prove that the other spouse was at fault for the dissolution of the marriage. Couples can simply state that they have “irreconcilable differences” or have been “living separately for a specified duration”. During the divorce process, assets and liabilities must be distributed equitably.
It is important to note that a financial advisor can help you determine the potential impact of a divorce on your personal financial situation. Additionally, consulting with an attorney or a family law practice guide can provide more specific information about your options.
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Evidence of common-law marriage
Evidence of a common-law marriage will vary depending on the state in which the marriage took place. Common-law marriage is only recognised in a few US states, including Colorado, Texas, Iowa, Kansas, Montana, Rhode Island, and Oklahoma. In the District of Columbia, common-law marriage is recognised, along with some provisions of military law.
In general, a common-law marriage is a marriage without a formal ceremony, where two people free to marry consider themselves married, live together, and, in some states, meet other requirements. To prove a common-law marriage, preferred evidence includes signed statements from both spouses and two blood relatives. If one spouse is deceased, the other spouse must provide a signed statement, along with signed statements from two blood relatives of the deceased. These signed statements should explain why the signer believes the couple was married.
If this preferred evidence is not available, other convincing evidence may be considered, such as an agreement or official document signed by both partners declaring their intention to marry. Other documents that can help prove a common-law marriage include deeds showing joint ownership of property, bank statements showing joint accounts, loan documents, leases, mortgages, and credit card accounts in both spouses' names. Friend and family affidavits can also be helpful, especially if there was a public announcement of the marriage, such as a social media post or wedding invitation.
For same-sex couples, it may be more challenging to gather the necessary evidence, as they may not have had the option to file joint tax returns or list their partner as their spouse on official documents before the legalization of same-sex marriage. However, judges are encouraged to take a broad view and consider these realities when assessing evidence of a same-sex common-law marriage. Same-sex couples must still demonstrate their intention to live together as a married couple through their conduct.
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No-fault divorce
Ending a common-law marriage can be a complicated process. In the state of Texas, if a common-law couple decides to split up, they must file for divorce. However, if court proceedings are not initiated within two years of the separation, Texas law presumes that the common-law marriage never existed unless proven otherwise.
If a court determines that a common-law marriage is valid, the couple must follow the steps to obtain a traditional divorce before they can remarry. All states in the US allow spouses to use a no-fault divorce process, which is generally faster, less expensive, and less stressful than a contested, fault-based divorce.
In contrast, fault-based divorces require evidence of a breach of the marriage contract, such as cruelty, adultery, or desertion. These types of divorces can be more expensive and time-consuming, as they often involve litigating fault and sharing intimate details of the marriage in court.
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Legal and financial implications
Common-law marriages are legally recognised in only a few states, and the process of ending them varies from state to state. However, some general legal and financial implications are common across the states that recognise common-law marriages.
Firstly, it is important to establish whether a common-law marriage is valid. This can be done by providing evidence of cohabitation, shared finances, public acknowledgment of the relationship, joint tax returns, joint bank accounts, joint ownership of property, use of the same last name, and statements from friends and family who believed the couple to be married.
Once a common-law marriage is deemed valid, the process of divorce is similar to that of a traditional marriage. This includes filing a divorce petition, addressing issues such as child custody, child support, spousal support, visitation, and the division of assets and liabilities. The division of assets and liabilities is particularly important, as common-law couples accumulate these during their marriage, and they must be distributed equitably during the divorce process. If an agreement cannot be reached between both parties, the court will decide on their behalf.
It is worth noting that, unlike traditional marriages, common-law marriages do not have a paper trail of a marriage license. This can create challenges in proving the existence of the marriage, especially if one spouse denies it to avoid obligations like alimony or property division. In such cases, the other spouse can provide evidence of joint tax returns, insurance policies, joint bank accounts, retirement plans, and other jointly held properties to prove the existence of the common-law marriage.
Finally, it is imperative to legally terminate a common-law marriage before entering into another relationship, as any subsequent marriage without a divorce judgment would be considered invalid.
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Frequently asked questions
A common-law marriage is a marriage without formalities. In the US, a common-law marriage is typically established when a couple agrees to be married, lives together, and holds themselves out to the public as a married couple.
If you want to end a common-law marriage, you must file for divorce. Both parties can simply walk away and act as though the marriage never existed, but this can be problematic if you share children, property, and assets.
You can begin the divorce process by filing a formal petition with the court where you live. You will need to make sure you understand your state's residency and other divorce requirements.
If your partner denies that you were common-law married, you will have to prove to the court that your relationship met the requirements for a common-law marriage. This can be done by providing evidence such as joint bank accounts, tax filings, and utility bills.
Neither you nor your ex-spouse is free to remarry until the court signs your judgment of divorce. A common-law spouse who separates without obtaining a valid divorce is still legally married and cannot marry again without running afoul of bigamy laws.
