Keith Mack
Common law marriage is a set of legal rights similar to those of a formal marriage but without the formality of a ceremony. It is only recognized in a handful of states, and the law varies between them. Ending a common-law marriage is a complex process that closely mirrors the divorce procedure of a traditional marriage. The first step is to establish the validity of the common-law marriage in a court of law. This involves presenting evidence of cohabitation, intention to live as a married couple, and public presentation as such. Once the marriage is validated, the couple must file a formal petition with the court, outlining reasons for the divorce and addressing issues like property division, alimony, and child custody.
| Characteristics | Values |
|---|---|
| Recognition of common-law marriage | Varies by state; only eight states and the District of Columbia recognize common-law marriage as legal |
| Requirements for common-law marriage | Cohabitation, intention to be in a marital relationship, and public recognition as a couple |
| Ending a common-law marriage | The process is similar to that of a traditional marriage, including filing for divorce, addressing issues like property division, alimony, and child custody/support |
| Disputing the existence of a common-law marriage | One spouse may claim no marriage existed to avoid obligations; the other spouse can present evidence to prove the marriage, such as joint tax returns, insurance policies, or shared property |
| Bigamy | Applicable to common-law marriages; illegal to enter a new marriage before legally ending the previous one |
| Child custody | Legal paternity must be established for child custody and support arrangements |
| Separation | Recognition varies by state; some states, like Texas, do not recognize separation in common-law marriages |
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What You'll Learn
Disputing the existence of a common-law marriage
A common-law marriage is a marriage without a license or ceremony, established by cohabitation and holding oneself out as married. While it is not recognised in most US states, a few do recognise it, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia, and, historically, Pennsylvania, Ohio, Idaho, Georgia, and Florida.
If a couple has established a common-law marriage and decides to part ways, the process is similar to a traditional divorce. Disputing the existence of a common-law marriage can be tricky, as it often comes down to one partner's word against the other's. However, there are ways to prove or disprove a common-law marriage:
- Cohabitation: While cohabitation is a key element of a common-law marriage, it is not enough to prove it. The couple must have lived together for a defined period, as stipulated by the state.
- Mutual intent to be married: This can be proven through a written agreement or other official documents signed by both partners declaring their intention to marry. Affidavits or testimony from both partners swearing to the existence of the informal marriage can also help.
- Public portrayal as a married couple: This can include witness testimony from friends, family, or neighbours confirming the couple's marital status and public portrayal as a married couple. Documents indicating shared surnames or references to each other as spouses can also be used as evidence.
- Financial ties: Evidence of shared finances, such as joint tax returns, insurance policies, or shared property, can indicate the existence of a common-law marriage.
- Ceremony: In some cases, a ceremony may have taken place but was invalid due to a lack of license or an unlicensed officiant.
It is important to note that the specific requirements and recognition of common-law marriage can vary by state, and an experienced family law attorney can provide guidance on the specific laws and evidence required in a particular state.
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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 establish a valid common-law marriage, partners must generally have lived together (or "cohabitated") consistently during the marriage. They must also have "held themselves out" to the public as a married couple, presenting themselves as such to family, friends, and members of the community. Importantly, there is no rule that a couple must live together for seven years or any set amount of time.
Same-sex partners will need to show, through their conduct, that they intended to live together as a married couple. This can be challenging to prove, and legal advice should be sought to understand specific state requirements.
Validating a common-law marriage may be necessary in several situations, such as when separating from your partner and seeking a divorce, or when trying to inherit property from your partner's estate. Couples in valid common-law marriages generally have the same legal rights and obligations as any other married couple.
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Division of assets and liabilities
In Ontario, marriage is considered an economic partnership, and both spouses are entitled to an equal share of the value of the proceeds of the partnership. They are also equally responsible for debts and liabilities. However, common-law spouses do not have the same property rights as married spouses under the Family Law Act (FLA). As a result, each common-law partner is only entitled to the assets they brought into the relationship or acquired during it.
If you own a home or any other asset that you wish to protect from being divided with your common-law partner in the event of a separation, you should consider a cohabitation agreement. This agreement should be signed before cohabitation, as it becomes more difficult to negotiate once cohabitation has begun. The cohabitation agreement can outline what happens to specific property at the end of the relationship.
If you contributed to property that your spouse owns, you may have a right to part of it. If your spouse does not agree to compensate you, you may need to go to court to recover your contribution. While there is no requirement to divide property upon separation, common-law spouses may enter into a domestic contract, such as a cohabitation or separation agreement, outlining their respective rights to property.
Any debts acquired during a common-law relationship are typically divided equally between the partners. This includes credit card debts, lines of credit, car loans, and other forms of debt. If one party has more debt than the other, they can negotiate through their lawyer to have some of the debt absorbed by their partner.
In cases where one partner feels they have contributed significantly to the value of an asset belonging to their partner, such as a home, pension, or savings account, they can make a claim for a constructive trust to address unjust enrichment. To prove unjust enrichment, the claimant must demonstrate that they were engaged in a joint family venture and that their partner is retaining a disproportionate share of the profits.
It is important to note that litigation in this area can be complex, and it is recommended to seek legal advice from a family law lawyer to understand your rights and options.
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Alimony and child support
Alimony, also known as spousal support, can be awarded to either party in a common-law marriage. The process of ending a common-law marriage is similar to that of a traditional marriage, and a court will divide any property according to the state's divorce laws.
To establish a common-law marriage, a couple must first prove its validity in a court of law. This typically involves presenting evidence of cohabitation for a stipulated period, intention to live as a married couple, and publicly presenting themselves as such. Once this is established, a court will consider the same factors as in a traditional marriage when determining spousal support, including the length of the marriage, the standard of living during the marriage, the financial condition and needs of the recipient, and the ability to pay.
The amount of spousal support and the duration of payments will be determined by a judge, who will consider various aspects such as the state's guidelines, need, ability to pay, ages and health of both parties, number of minor children, and educational level. Spousal support may be awarded for a specified time or until it is modified or terminated. It generally ends upon the death of either spouse or the remarriage of the recipient.
In the case of child support, if children are involved, and one parent becomes the primary caregiver, the other parent may be required to provide financial support. This is separate from alimony and is based on the needs of the child.
It is important to note that common-law marriage is not recognized in all states, and even in states that do recognize it, specific qualifications must be met. The laws governing alimony and child support can vary by state, so it is advisable to consult a local divorce lawyer for specific advice.
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Finalization of divorce
To finalise a divorce, several steps must be taken. Firstly, it is important to establish the validity of the common-law marriage in a court of law. This involves presenting evidence of cohabitation for a stipulated period, the intention to live as a married couple, and public presentation as such. Once the court determines that a common-law marriage is valid, the divorce process can begin with the submission of a formal petition to the court, outlining the reasons for the divorce and any other pertinent issues such as property division, alimony, and child custody.
The finalisation of the divorce itself involves the court reviewing and approving all aspects of the divorce, including property division, alimony, and child custody arrangements. Only after the court has done so will a judgment of divorce be granted, formally and legally ending the marriage. This judgment is a final, enforceable order that outlines the final terms of the divorce and the obligations of each party, including the division of assets and debts, allocation of property, spousal support, child custody and support, insurance considerations, and name changes.
To finish the divorce process, a set of final forms must be submitted to the court, which will review the forms for accuracy and completeness. If everything is in order, the judge will sign the final form, or judgment, which will include the exact date the marriage officially ends. It is important to note that modifying a divorce decree can be complex, and any issues with the decree should be addressed with an attorney or the court clerk, as a hearing may be required to make amendments.
It is worth noting that the process of ending a common-law marriage can vary depending on the state in which the couple lives, as each state has its own requirements for proving the validity of a common-law marriage. Additionally, some states do not recognise common-law marriage or separation. Therefore, it is essential to seek the services of an experienced divorce lawyer in your state to guide you through the specific process and requirements.
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Frequently asked questions
A common-law marriage is a set of legal rights similar to those of a formal marriage but without the formality of a ceremony or a marriage certificate. Common-law marriages are also referred to as informal marriages.
Common-law marriages are only recognised in a few states. To be in a common-law marriage, you must live together (cohabitation) for a period defined by the state, intend to live as a married couple, and portray yourselves as married to the world. In some states, you may also need to register your common-law marriage.
If your common-law marriage is valid, you will need to follow the steps to obtain a traditional divorce before you can remarry. This involves filing a formal petition with the court where you live. You will need to understand your state's residency and other divorce requirements.
Similar to traditional marriages, common-law couples accumulate assets and liabilities over time. During the divorce process, these must be distributed equitably. This might involve a thorough evaluation of jointly held properties, shared debts, and other financial elements. Both parties can agree upon a division, or the court will decide on their behalf.
Legal paternity must be established before custody or child support can be determined. If there is a disagreement about paternity, a petition requesting a legal determination must be filed. The court will determine paternity before addressing issues of child custody or child support.
