Many couples may consider themselves to be “common law married” after living together for a long period of time. However, a common law marriage is actually a legal status that exists in only eight states and the District of Columbia. Two states recognize domestic common law marriage after the fact for limited purposes only.
So if a person’s relationship qualifies as a common law marriage and the relationship is at an end, what should the person do? Is common law divorce the same as a regular divorce? What about property division and child custody? This is a short guide to common law marriage, where it exists, and what happens when one comes to an end.
What Is a Common Law Marriage?
A common law marriage is a set of legal rights similar to that of a formal marriage but without the formality of a ceremony that is recognized as having legal effect. Common law marriage is also referred to as informal marriage, marriage by habit and repute, and marriage in fact. Because no marriage certificate exists to show that such a union exists, each state has a test that must be met to prove a common law marriage is valid.
The law regarding common law marriage varies from state to state, and most states do not recognize common law marriage. However, under common law marriage rules, there are commonalities that exist:
- The two people must live together (also known as cohabitation);
- The two people themselves intended their relationship to be a martial one; and
- The community saw them as a married couple.
Some jurisdictions may place additional requirements on a couple claiming a common law marriage, so the people involved must check the law in the state in which they live. For example, there may be age requirements for entering into a common law marriage.
Which States Allow Common Law Marriage?
Eight states and the District of Columbia recognize common law marriages as legal, although some only do so for inheritance purposes. In addition, other states that formerly did recognize common law marriage rights now no longer do so unless the union can be traced back to before a certain statutory cutoff date.
The remaining states (and the District of Columbia) that fully recognize common law marriages are:
- Colorado
- The District Of Columbia
- Iowa
- Kansas
- Montana
- New Hampshire
- Rhode Island
- Texas
- Utah
New Hampshire recognizes common law marriage for the purpose of inheritance only. Other states only recognize common law marriages that originated before a cut-off date; they are as follows:
- Georgia: valid only before January 1st, 1997
- Idaho: valid only before January 1st, 1996
- Ohio: valid only before October 10th, 1991
- Oklahoma: valid only before October 10th, 1998
- Pennsylvania: valid only before January 1st, 1995
For a common law marriage to be recognized in these states, evidence would be needed to prove that the union started prior to these dates. In 2018, South Carolina announced that it would no longer recognize common law marriages.
Will My Common Law Marriage Be Valid In Another State?
If two people begin a common law marriage in a state that allows it and then move to a state that does not allow it, the state that does not allow common law marriages would recognize the marriage from another state that does allow it. The Full Faith and Credit clause of the U.S. Constitution requires that each state respect the “public acts, records, and judicial proceedings of every other state.”
This applies to marriages and common law marriages, and therefore to the dissolution of these marriages. So if a couple can show a valid common law marriage established in Texas, and then the couple moves to Arizona and decides to divorce, the Arizona courts have jurisdiction to dissolve the marriage.
How Do I End My Common Law Marriage?
Because common law marriage, once formed, is considered the same as a legal, licensed marriage, the parties must go through the same legal procedures to dissolve a common law marriage. That means filing a divorce petition and all other necessary documents with the family court in the state in which the parties live.
The legal process is also the same as dissolving a formal marriage. All the same legal issues need to be addressed, such as child custody and child support, spousal support, visitation, and the division of property.
Are There Any Specific Issues I Need To Be Aware of for a Common Law Divorce?
To avoid paying alimony or dividing certain property, one spouse may claim that no common law marriage has ever existed in the first place. To counter this, the other spouse can show joint tax returns, insurance policies, joint bank accounts, retirement plans, any other property held together, and other evidence to prove the existence of the common law marriage.
The judge takes all evidence and all other facts into consideration. In some cases, witness testimony and other documents can be used as well to determine whether the relationship was a legal common law marriage.
It is also important to note that a common law marriage is treated the same as a formal marriage when it comes to bigamy laws. So, a person must legally end a common law marriage before a person enters into another one, either common law or formal.
Another issue that can arise is that of child custody. Legal paternity must be established before custody or child support can be determined. If two people are married, children born into the marriage are children of both spouses by law.
However, when a couple is not married, paternity must be established in one of two ways, either by an acknowledgment of paternity or by a previous adoption. If there should be a disagreement about paternity, a petition requesting a legal determination must be filed. The court would have to determine paternity before it can address issues of child custody or child support.
Whether there is such a thing as common law separation depends on the law in the state in which a person lives. For example, Texas, a state in which common law marriage is recognized, does not recognize separation, so it does not recognize common law separation.
Separation is recognized by the law in the state of Kansas. There are various reasons for a couple to pursue legal separation rather than divorce; for example, they may wish to remain on the same insurance policy, which would not be allowed if the parties were to divorce. Presumably, if legal separation is available to people who are legally married, it would be available to people who are married per the law of common law marriage.
Do I Need An Attorney For My Common Law Divorce?
Getting divorced is a complex process even for those entered in official marriages. Therefore it is doubly important that if you are looking to end a common law marriage, you seek the services of an experienced divorce lawyers in your state.
If you are now living in a state that does not recognize common law marriage, you would have to prove the existence of the marriage in a court that does not have experience in dealing with common law marriage. This could create special challenges. You have the best possible chance of a successful outcome if you have an experienced family law attorney representing you.
