Cameron Miranda
Common-law marriages are legally recognised in a few states in the US, including Texas, Colorado, Iowa, Kansas, and Oklahoma. Couples who live together for a certain period and act as spouses by filing joint tax returns, sharing property, or assuming the same last name can be considered married under common law. When a common-law marriage ends, the couple must go through a divorce process similar to that of a traditional marriage. This includes validating the existence of the common-law marriage, distributing assets and liabilities, determining alimony and child support, and finalising the divorce legally. While it is not mandatory to hire an attorney for a common-law divorce in Texas, it is strongly recommended due to the legal complexities involved.
| Characteristics | Values |
|---|---|
| Number of states recognizing common law marriage | 9 |
| States recognizing common law marriage | Colorado, Iowa, Kansas, Oklahoma, Rhode Island, Texas, Utah, Montana, and New Hampshire |
| Requirements for common law marriage | Evidence of cohabitation for a defined period, a written agreement showing mutual intent to be married, witness testimony confirming marital status, documents indicating shared surnames or references to each other as spouses |
| Requirements for divorce | Validation of common law marriage, distribution of assets and liabilities, alimony and child support, finalization of divorce by the court |
| Divorce process | Filing a petition for divorce with the court, serving the spouse, decision-making about property division, child custody, and spousal support by the judge |
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What You'll Learn
Validation of common-law marriage
In the United States, common-law marriage is recognised in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage.
To validate a common-law marriage, both partners must intend to live as a married couple during their relationship. This means that both partners voluntarily enter into a long-term, committed, intimate relationship with the intention to take on the social and legal responsibilities of marriage. Typically, both partners must "hold themselves out" to the public as a married couple. This means that they present themselves as a married couple to family, friends, and members of the community. To validate a common-law marriage, the couple must generally have lived together (or "cohabitated") consistently during the marriage. There is no rule that the couple must live together for seven years, or for any set amount of time.
Same-sex partners will still need to show, through their conduct, that they both intended to live together as a married couple.
You might need to prove that you have a valid common-law marriage in several situations, including when you are separating from your partner and want a divorce so that a judge may issue orders dividing your property or awarding alimony, but your partner claims you were never married. You may also need to validate your common-law marriage when trying to inherit property from your partner's estate or to pursue other estate planning benefits, or when claiming insurance benefits, Social Security benefits, or other retirement or employment benefits through your spouse.
If you want to validate your common-law marriage, you should consider consulting with an experienced lawyer who can help you understand your state's specific requirements.
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Disputing existence of marriage
Disputing the existence of a common-law marriage can be a complex legal issue. The original concept of a "common-law" marriage is one that is considered valid by both partners but is not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious service.
To establish a common-law marriage, a couple generally has to meet the following requirements: be eligible to marry and cohabit in a place that recognizes common-law marriage, intend to be married, and hold themselves out in public as a married couple.
If a partner wishes to dispute the existence of a common-law marriage, they can present evidence to the contrary, such as witness statements or documentation. For example, they may argue that they never intended to be married or that they did not cohabit in a place that recognizes common-law marriage. They may also present evidence that the couple did not hold themselves out in public as a married couple, such as through witness statements from family and friends.
In some cases, a partner may deny the existence of a common-law marriage to avoid obligations like alimony or property division. In these cases, the opposing spouse can present evidence to prove the marriage's existence, such as joint tax returns, insurance policies, or shared property.
It is important to note that not all jurisdictions permit common-law marriage, and the recognition of common-law separation varies by state or country. For example, common-law marriage is recognized in some US states, including Colorado, Iowa, Kansas, Montana, and Texas, but not in others. In Australia, the term "common-law marriage" is not recognized, but de facto relationships are recognized in the Family Law Act. In the UK, a 2008 poll showed that 51% of respondents incorrectly believed that cohabitants had the same rights as married couples, and in Scotland, common-law marriage does not exist.
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No-fault divorce option
No-fault divorce is the dissolution of a marriage where neither party is legally required to prove that the other spouse was at fault for the breakdown of the marriage. In other words, it allows a family court to grant a divorce without requiring the petitioner to provide evidence that the defendant has committed a breach of the marital contract.
All states in the U.S. offer a 'no-fault' divorce option. This means that couples can simply state that they have "irreconcilable differences" or have been "living separately for a specified duration" depending on the state laws. Reasons given by parties seeking a no-fault divorce include an irretrievably broken marriage or an irretrievable breakdown of the marriage.
No-fault divorce has been an option in the U.S. for more than 50 years, with California becoming the first state to permit it in 1969. Since then, no-fault divorce has become much more common, with several countries adopting similar laws. China, for example, has allowed no-fault divorce since 1950, while Australia established no-fault divorce in 1975.
The benefits of no-fault divorce are numerous. Firstly, it simplifies and speeds up the divorce process, reducing both costs and emotional stress. Secondly, it provides an option for couples to divorce outside of ugly legal battles, which can be particularly destructive for families. Thirdly, it can be easier on children, who are affected by the financial decisions and family environment provided by their parents. Finally, no-fault divorce is seen by feminists and human rights advocates as a way to promote gender equality and address issues like marital abuse. Studies have shown that no-fault divorce correlates with a reduction in female suicides, a decrease in intimate partner violence, and a drop in women being murdered by their partners.
Despite these benefits, no-fault divorce is controversial and has long been sneered at in conservative circles. Some conservative politicians and commentators, along with some religious and social groups, argue that unilateral divorce degrades the American family unit and adversely affects men, children, and the economy.
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Distribution of assets and liabilities
The distribution of assets and liabilities during a divorce can be a challenging, complex, and emotionally charged process. The law generally defines all assets and liabilities acquired during the marriage as marital property. This includes any enhancement or appreciation in value of non-marital assets resulting from the efforts of either spouse during the marriage or the use of marital funds. Marital assets may also include gifts exchanged between spouses, retirement benefits, and rights accumulated during the marriage.
The first step in the distribution process is to identify and classify each asset and liability as either marital or non-marital. Marital property typically includes real property titled in both spouses' names, bank accounts, retirement accounts, investments, collectibles, vehicles, businesses, personal property, and debts incurred during the marriage. Non-marital assets, on the other hand, are those acquired before the marriage or after separation, as well as gifts received prior to the marriage.
Once the identification and classification phase is complete, each marital asset and liability must be accurately valued. Courts often refer to equitable distribution worksheets to determine the value of assets and liabilities. This process involves listing all assets and liabilities distributed to each spouse and calculating an equalization payment to ensure each party receives an equal share of the value.
In some cases, courts may consider relevant factors to justify an unequal distribution of marital assets. These factors can include the contribution of each spouse to the marriage, their respective careers, and the desirability of retaining certain assets, such as a business or professional practice, without interference from the other party.
It is important to note that the distribution of assets and liabilities can vary depending on the state and the specific circumstances of each case. Consulting with a skilled attorney experienced in matrimonial law is advisable to navigate the complexities of asset and liability distribution during a divorce.
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Alimony and child support
Alimony, also referred to as spousal support, is a legal obligation for a person to provide financial support to their spouse before or after a marital separation or divorce. The obligation arises from divorce law or family law in each country. The requirements for determining spousal support vary from state to state, and each state has a different set of factors that judges can consider when making decisions about spousal support. For instance, in Canada, a lump sum is usually awarded to compensate the spouse who sacrificed their career for the family, and the sum depends on the length of the marriage and other circumstances.
In the US, the recipient spouse is required to seek economic self-sufficiency, and the judge will look at their ability to earn income and their assets to determine if they can use these as a source of support. The judge will also consider the length of the marriage, the ages and health of both parties, the number of minor children, and the educational level. If the marriage lasted only two years, it is unlikely that the judge would award permanent spousal support to one spouse.
In the context of a common-law marriage, divorce and alimony can be complex. If a court determines that a relationship constitutes a common-law marriage, the couple is subject to the same divorce laws as traditionally married spouses, including laws governing property division and alimony. However, proving the elements of a common-law marriage can be challenging, and one partner may deny the existence of the marriage to avoid alimony or property division. In such cases, the other spouse can present evidence such as joint tax returns, insurance policies, or shared property to establish the marriage.
Child support is distinct from alimony in most jurisdictions. After a divorce, one parent may be required to contribute to the support of their children by making payments to the child's other parent or guardian. If one parent becomes the primary caregiver, the other parent may be mandated to provide child support.
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Frequently asked questions
Yes, a divorce is required to legally dissolve a common-law marriage. While the process is similar to a traditional divorce, the couple must first establish the validity of their common-law marriage in a court of law.
Proving a common-law marriage to a court typically requires:
- A written agreement showing mutual intent to be married.
- Witness testimony confirming marital status and public portrayal as a married couple.
- Documents indicating shared surnames or references to each other as spouses.
The process for getting a divorce for a common-law marriage is the same as for a formal marriage. You will need to file a petition for divorce with the court and serve your spouse. At the end of the process, the judge will make decisions about property division, child custody, and spousal support.
One of the challenges of a common-law divorce is that a partner may deny the existence of the marriage to avoid obligations like alimony or property division. Another challenge is that bigamy laws apply to common-law marriages, making it illegal to enter a new marriage before legally ending the previous one.
While it is not required, it is strongly advised to hire an attorney for a common-law divorce, especially if there are children or complex financial assets involved. An attorney can help ensure your rights are protected and guide you through the legal process.
