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Written By:
Divorce.com Staff
Common Law Marriage and Divorce: What You Need to Know
When you’re in a relationship and planning a future together, you’ll need to make several important decisions—such as whether to enter into a prenuptial agreement. For many couples, marriage is the ultimate goal, but a traditional (and often expensive) ceremony may not be appealing.
Common law marriage can be an alternative. It allows couples to receive certain legal benefits of marriage without obtaining a marriage license. However, common law marriage is not available in every state, and couples must meet specific legal requirements to qualify.
How Do Divorces Work in Common Law Marriages?
There is technically no such thing as a “common law divorce.”
In states that recognize common law marriage as a valid legal union, the same divorce laws that apply to traditional marriages also apply to common law marriages. This means:
The divorce process is the same
The same courts are used
The same rules govern property, custody, and support
There is no special or simplified procedure just because the marriage was formed through common law.
Grounds for Divorce in a Common Law Marriage
The grounds for divorce in a common law marriage are identical to those in a traditional marriage. “Grounds for divorce” simply refers to the legally acceptable reasons for ending a marriage.
No-Fault Divorce
Most states are no-fault divorce states, meaning the filing spouse does not need to prove wrongdoing. Instead, they may state that:
The marriage is no longer working
The couple cannot get along
The marriage has irretrievably broken down
In no-fault states, courts do not require evidence of misconduct.
Fault-Based Divorce
In fault divorce states, the filing spouse must prove that the other partner caused the marriage to fail. Common fault grounds include:
Adultery
Cruelty (verbal or physical abuse)
Conviction of a felony
Abandonment
If you live in a fault-based state, you may cite one or more of these reasons when filing.
How Are Assets Divided in a Common Law Divorce?
Asset division in a common law divorce follows the same rules as a traditional divorce.
To understand how property is divided, it’s important to distinguish between marital property and separate property.
Marital Property
Marital property generally includes anything the couple acquired after the marriage became legally valid. This property may be divided by agreement or by court order if the spouses cannot agree.
Separate Property
Separate property typically includes:
Assets owned before the marriage
Property purchased during the marriage but:
Held in only one spouse’s name, and
Not used for the other spouse’s benefit
Property both spouses agree (in writing) is separate
Gifts received by either spouse
Inheritances received by either spouse
Pension funds earned before marriage
Personal injury settlements (in some cases)
Because common law marriages are treated like traditional marriages, there is no special property division process when the relationship ends.
How Are Child Custody Issues Resolved?
Ideally, parents reach a custody agreement amicably. When that isn’t possible, custody disputes in common law divorces are handled the same way as in traditional divorces.
Judges decide custody based on the best interests of the child, considering factors such as:
Ability to provide a stable home
Financial capacity to support the child
Attentiveness to the child’s needs
The child’s preference (typically if the child is 12 or older)
If one parent is found unfit, the court may award sole custody to the other parent. The unfit parent may still be ordered to pay child support, depending on financial circumstances.
However, having full custody does not automatically guarantee child support.
What Is a Common Law Marriage?
A common law marriage exists when a couple is considered legally married without a ceremony or marriage license.
Only a small number of states recognize common law marriage. Even in those states, couples must meet specific statutory or case-law requirements.
What If You Live in a Community Property State?
Community property states treat most property acquired during marriage as jointly owned.
Community property states include:
Arizona
California
Idaho
Louisiana
Nevada
New Mexico
Texas
Washington
Wisconsin
None of these states recognize common law marriage. If you live in one of them, you must obtain a marriage license to be legally married.
Which States Recognize Common Law Marriage?
The following states (and Washington, D.C.) recognize common law marriage:
Colorado
Iowa
Kansas
Montana
New Hampshire
Oklahoma
Rhode Island
South Carolina
Texas (refers to it as “informal marriage”)
Utah
If you do not live in one of these jurisdictions, you must undergo a traditional marriage ceremony to be legally married.
How Do You Qualify for a Common Law Marriage?
Requirements vary by state, but generally include the following:
Residence in a state that recognizes common law marriage
Cohabitation, usually for at least one year (no state specifies a fixed duration)
Holding yourselves out as married, including:
Referring to each other as husband and wife
Introducing yourselves as a married couple
Sharing a last name (in some states), including:
Updating documents such as credit cards or official records
Commingling finances, such as:
Joint bank accounts
Filing joint tax returns
Mental capacity, meaning both partners are of sound mind
No existing marriage to another person
You cannot become legally married under common law overnight—it requires sustained conduct over time.
How Can You Prove a Common Law Marriage?
Because there is no marriage license, proof relies on documentation. Common examples include:
Life insurance policies listing the partner as beneficiary
Joint credit card or bank statements
Property deeds (real estate or vehicles)
Mail addressed to both partners
Proof of shared last name
Signed affidavits from friends or family attesting to the relationship
This list is not exhaustive. Different situations may require different forms of proof.
Common Myths About Common Law Marriage
Myth: You must live together for 7–10 years
False. No state sets a required timeframe. Many accept one year or less, depending on circumstances.
Myth: You automatically inherit your partner’s assets
False. You must prove the marriage or be named in a will or estate plan.
Myth: Property is automatically split 50/50
False. Property division depends on state law and judicial discretion.
Myth: Common law marriage has a different divorce process
False. Divorce laws are the same as for traditional marriages.
Final Thoughts
Yes—you do need a divorce to end a common law marriage. However, the process is no more complicated than a traditional divorce, especially if both spouses cooperate.
Always consult local laws and consider seeking legal counsel to ensure your rights and obligations are fully understood.
Community Property States List vs. Common Law, Taxes, Definition | assetprotectionplanners.com
Marriage vs. Common-Law Marriage: What's the Difference? | Investopedia
fault divorce | Wex | US Law | LII / Legal Information Institute | law.cornell.edu
grounds for divorce | Wex | US Law | LII / Legal Information Institute | law.cornell.edu
https://www.law.cornell.edu/wex/no-fault_divorce | law.cornell.edu
Splitting Property After a Common-Law Marriage | Investopedia
Fact or Fiction: Five Myths About Common Law Marriage | legalzoom.com
