Understanding Divorce in Common Law Marriage

Common law marriage is a type of marriage that is not based on a formal ceremony or a marriage license, but rather on the couple’s behavior and how they present themselves as a married couple to society. Many believe that a couple cannot be considered in a common law marriage until they have represented themselves in that fashion for seven or 10 years however no state provides specifics for a requisite time span.

While it is always changing, at this time in 2023, the following states recognize common law marriages: Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. If you live in a state that acknowledges common law marriage, couples who wish to prove their arrangement can register it by filing a declaration with the county clerk. For those who opt not to do this, documents such as lease agreements, tax returns, and insurance policies can be utilized if the need to prove it arises if, for example, either partner wishes to claim Social Security spousal or survivor benefits.

Some states, such as Ohio and Pennsylvania, used to allow common law marriages and while they do still recognize them as valid, they have changed their laws in reference to them.

In common law marriage, even without a wedding, a couple can be considered legally married if they meet certain criteria.

Criteria for Common Law Marriage:

  1. Intent to Marry: Both partners must intend to be married. This means they must agree that they are a married couple and have the same rights and responsibilities as traditionally married couples.
  2. Living Together: The couple usually needs to live together for a certain period of time, which varies depending on the jurisdiction. Simply dating or spending time together is not enough to establish a common law marriage.
  3. Public Recognition: The couple must hold themselves out to the public as a married couple. This could include using the same last name, introducing each other as spouses, or filing joint tax returns.

Divorce in Common Law Marriage: Divorce is a legal process that happens when a married couple decides to end their marriage and live separately. If a couple in a common law marriage decides to separate, they might need to go through a divorce process, just like formally married couples. The steps involved in a common law divorce are generally similar to those in a traditional divorce:

  1. Separation: The couple must first live separately to be eligible for a divorce. This separation period varies by jurisdiction.
  2. Legal Paperwork: Similar to traditional marriages, a common law couple seeking a divorce needs to file legal documents with the appropriate court. These documents usually outline the reasons for the divorce and any related issues like property division, child custody, and support.
  3. Property and Custody Issues: Dividing property and deciding custody arrangements for any children are important aspects of a common law divorce, just as they are in regular divorces.
  4. Legal Process: The divorce process may involve negotiations, mediation, or even court hearings, depending on the complexity of the situation and the jurisdiction’s laws.
  5. Divorce Decree: Once the court approves the divorce agreement or makes decisions about property and custody, a divorce decree is issued. This officially ends the common law marriage.

Benefits of a Formal Divorce: Getting a formal divorce, even from a common law marriage, can have several benefits:

  • Legal Clarity: A divorce decree provides legal clarity about the end of the marriage, which can be important for issues like property rights and financial obligations.
  • Child Custody and Support: A divorce decree can outline custody and child support arrangements, ensuring the well-being of any children involved.
  • Financial Protection: A divorce can protect each partner from debts or obligations incurred by the other after separation.

Remember, the rules about common law marriage and divorce vary by jurisdiction and are always changing, so it’s important to understand the current laws in your area. If you’re in a common law marriage and considering divorce, seeking legal advice is a smart step to make sure you’re aware of your rights and responsibilities.


Want to know more? Watch this interview Tracy did with Rich Harris.

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