Gavin Howe
Common law marriages, also known as informal marriages, are only recognised in a handful of US states, including Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, and Texas. In these states, common law marriages are treated the same as traditional marriages, meaning that couples must go through a similar legal divorce process. However, the biggest difference is that common law marriages lack a paper trail, making it difficult to prove the existence of a legal union. To get a common law divorce, couples must first establish the validity of their marriage in a court of law, presenting evidence such as cohabitation, shared finances, or public acknowledgment of the relationship.
| Characteristics | Values |
|---|---|
| Recognition of common-law marriage | Varies by state; some states recognize it, while others don't |
| Proof of common-law marriage | Evidence of cohabitation, shared finances, public acknowledgment, etc. |
| Divorce process | Similar to traditional marriages, including filing a formal petition, distributing assets, and finalizing the divorce |
| No-fault divorce option | Available in all states, simplifying the process and reducing costs and emotional stress |
| Remarriage | Allowed after the divorce is finalized, but any subsequent marriage before the official divorce is considered invalid |
| Common law divorce states | Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, Texas, District of Columbia, New Hampshire, South Carolina, Utah |
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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 marriage license or certificate. Common-law marriages are currently recognised in seven states and the District of Columbia.
To prove a common-law marriage, couples must provide evidence that they meet the legal requirements for valid common-law marriages in their state. This may include:
- An affidavit or written statement declaring that the couple is married, including the date and location where they mutually agreed to become spouses.
- Affidavits from friends and family who are familiar with the relationship and can attest to the couple's marital status.
- Other official documents signed by both partners declaring their intention to marry, such as lease agreements, tax returns, insurance policies, or property deeds.
- Proof that both spouses were at least 18 years old and had the mental capacity to understand the commitment and consequences of marriage.
- Evidence that the couple lived together and held themselves out in public as a married couple.
It is important to note that the specific requirements and evidence needed to prove a common-law marriage vary by state. For example, in Texas, there is a two-year statute of limitations for court proceedings to prove a common-law marriage after a separation. Same-sex couples may also face additional challenges in gathering evidence to prove their relationship due to historical discrimination and legal restrictions.
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State recognition
The legal status of common-law marriages has a significant impact on divorce procedures. When a couple with a common-law marriage decides to part ways, they must go through a legal divorce process. The first step is to establish the validity of their common-law marriage in a court of law, as common-law marriages lack a formal paper trail like marriage licenses or certificates. This validation process can be challenging, as it requires presenting evidence of cohabitation, shared finances, public acknowledgment, and other measures that demonstrate their intention to be legally married.
The specific requirements for proving a common-law marriage may differ across states. For example, some states may require couples to live together for a certain period, while others may not consider cohabitation as a factor. The legal rights associated with common-law marriages are generally similar to those of traditional marriages, and upon separation, issues such as asset distribution, liabilities, alimony, and child custody need to be addressed.
It is important to note that even if a couple relocates to a state that does not recognise common-law marriages, they are still considered legally married until they obtain a valid divorce. This was affirmed by Article IV, Section 1 of the United States Constitution, also known as the Full Faith and Credit Clause, which outlines the duty of states to recognise the acts and proceedings of other states. Therefore, state recognition plays a pivotal role in both the establishment and dissolution of common-law marriages, influencing the legal rights and obligations of couples across the country.
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No-fault divorce
The first modern no-fault divorce law was enacted in Russia in December 1917 following the October Revolution of the same year. With a law adopted in 1969, California became the first US state to permit no-fault divorce. Australia established no-fault divorce in 1975, with the only ground for divorce being the irretrievable breakdown of the marriage, evidenced by a twelve-month separation. Canada effectively permitted no-fault divorce in 1986 by reducing the separation period to one year.
Several US states, including Louisiana, Oklahoma, and Texas, have introduced or are actively discussing legislative proposals that could restrict or eliminate the practice of no-fault divorce. These efforts are driven by concerns over the impact of no-fault divorce on family stability. Critics, however, worry that eliminating no-fault divorce could trap individuals in unhealthy or unsafe marriages, making it harder for domestic abuse survivors to leave dangerous situations.
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Division of assets
The division of assets during a divorce is a complex process that varies depending on the state and the specific circumstances of the couple. The laws of the state in which the divorce takes place will determine how the court divides money and property. While the specifics differ, states generally follow one of two systems: community property or equitable distribution.
In community property states, most property acquired during the marriage is held jointly by the spouses, making it more likely to be equally divided. This includes all profits and assets accumulated throughout the marriage, as well as anything obtained with those incomes. This could include a home or real estate, bank accounts, retirement accounts, family businesses, vehicles, life insurance policies, and household goods. On the other hand, property that a spouse acquires after filing for divorce or after a "date of separation" defined by state law may be considered separate property.
In equitable distribution states, property acquired during the marriage is considered marital property, but it is divided fairly and equitably, but not necessarily equally. Judges may consider factors such as the length of the marriage, each spouse's earning capacity, direct or indirect contributions to the household, and any other circumstances that influence fairness. For example, in the state of Missouri, which is an equitable distribution state, a judge will first divide property into separate and marital property and then divide the marital property equitably.
The distinction between separate and marital property can sometimes be complicated, especially when separate and marital funds are commingled in bank accounts or when joint funds are used to improve separate property. In many states, if there is extensive commingling, the spouse claiming an asset as separate must trace the funds to prove how much is still separate. Business holdings can also be complex to assess, as the initial value of a business started by one spouse before the marriage may be considered separate property, while any increase in value due to the efforts of both spouses may be considered marital property.
To avoid the uncertainty and potential costs of a court trial, many couples choose to divide their assets through negotiation or mediation. As long as the agreement is fair and conscionable, the judge will approve it without needing to investigate the details. Couples can create a list of their valuable items, estimate their value, and decide which spouse should receive each item, ensuring the split is not starkly imbalanced. They can also seek the help of a neutral third party, such as a mediator, to minimize tension during this process.
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Finalising the divorce
Finalising a divorce can be a complex process, and it is important to understand the legal requirements and options available to you. Here are the key steps to finalising a divorce, focusing on the topic of common-law marriages:
- Validation of Common-Law Marriage: Before initiating the divorce process, couples in a common-law marriage must establish the validity of their union. This typically involves providing evidence of cohabitation, shared finances, and public acknowledgment of their relationship as a married couple. The requirements vary by state, and not all states recognise common-law marriages.
- Filing a Formal Petition: The divorce process begins with the submission of a formal petition to the court, outlining the reasons for the divorce and addressing pertinent issues such as property division, alimony, and child custody.
- No-Fault Divorce Option: All states offer a 'no-fault' divorce option, where neither party needs to prove fault or provide reasons for the dissolution of the marriage. This option simplifies the process, reduces costs, and minimises emotional stress.
- Distribution of Assets and Liabilities: Similar to traditional marriages, common-law couples need to divide their assets and liabilities equitably. This may involve evaluating jointly held properties, shared debts, and other financial matters. Couples can agree upon a division, or the court will decide if an agreement cannot be reached.
- Finalisation of the Divorce: The court will review and approve all aspects of the divorce, including property division, alimony, and child custody arrangements. Once the court grants a judgment of divorce, the common-law marriage is legally terminated.
- Remarriage Considerations: After the divorce is finalised, both parties are free to enter new relationships. However, it is crucial to obtain the divorce judgment before pursuing a new marriage, as any subsequent marriage before finalisation would be considered invalid.
It is important to note that the process of finalising a divorce may vary depending on the specific circumstances and the laws of the state or country involved. Seeking legal advice and understanding your rights and options is essential to ensure a smooth and comprehensive finalisation of the divorce process.
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Frequently asked questions
A common-law marriage is a marriage established by two individuals without a marriage license or ceremony. Common-law marriages are also sometimes called informal marriages.
Common-law marriages are legal in some states, including Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, Texas, and the District of Columbia. However, the laws governing common-law marriages vary from state to state, and some states, such as Massachusetts and Wisconsin, do not recognize them.
The process of divorcing from a common-law marriage is similar to that of a traditional marriage. First, the couple must establish the validity of their common-law marriage in a court of law, as there is typically no documentation to prove the marriage. Once the marriage is validated, the couple can file a formal petition for divorce, outlining reasons for the divorce and addressing issues such as property division, alimony, and child custody.
