Do I Need a Divorce for a Common Law Marriage?

By staff
Updated Sep 20, 2022


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How Do Divorces Work in Common Law Marriages

When you’re in a relationship with someone and planning your future together, you’ll need to make some critical decisions (ex: prenuptial agreement). For many couples, marriage is the ultimate goal, but perhaps the traditional (and likely expensive) ceremony isn’t what they had in mind.

Common law marriage is an alternative option allowing couples to experience some perks without the marriage license. However, this option isn’t available in every state, and there are specific criteria you’ll need to meet to qualify.

How Do Divorces Work in Common Law Marriages

How Do Divorces Work in Common Law Marriages?

You might be wondering — how does a common law divorce work? There’s no such thing as a common law divorce. In states that recognize common law marriages as a legal union, the divorce laws that apply to a traditional marriage also apply to couples married via common law. This means the divorce process is handled the same way as in any other case.

What Are the Grounds for Divorce in a Common Law Marriage?

  • No-fault divorce
  • One partner is at fault

The grounds for divorce in a common law marriage are the same as in a traditional one. The phrase “grounds for divorce” refers to reasons for divorce that are legally acceptable.

No-Fault Divorce

Most states are no-fault divorce states, meaning the partner who files doesn’t have to disclose their reasoning. They can simply state that the marriage is no longer working due to the couple's inability to get along and has, for all intents and purposes, “broken down.” In fault divorce states, the spouse who files must prove their partner caused the marriage to “fail” in some way.

One Partner Is at Fault

Often, a couple divorces because one partner is in the wrong. There are many reasons why a marriage could fall apart due to one spouse's behavior.

Reasons may include:

  • Adultery
  • Cruelty (verbal or physical abuse)
  • Conviction of a felony
  • Abandonment

If you live in a fault divorce state, you can cite any of these reasons when filing.

How Are Assets Divided in a Common Law Divorce?

Concerning the division of assets, you’ll need to understand the difference between marital and separate property. Marital property is anything a couple obtains together after marriage is official.

This property is eligible for division however the couple sees fit (or a judge rules if they can’t agree). Separate property is anything obtained by either spouse before their union.

Other examples of separate property include:

  • Property purchased during the marriage is only in one partner’s name and not used for the other’s benefit.
  • Property that both spouses agree on (in writing) is separate property.
  • Gifts are given to either spouse during the marriage.
  • Either spouse receives inheritances during the marriage.
  • Pension funds (acquired before marriage)
  • Personal injury disbursements (in some instances)

Since a common law marriage is treated the same as traditional marriage, if a couple decides to part ways, there isn’t a unique process they need to undergo to cut ties. They can simply refer to their local marriage laws.

How Are Custody Issues Resolved in a Common Law Divorce?

In the best-case scenario, the couple could amicably come to a child custody agreement. However, this isn’t always the case.

Since common law marriages have to abide by the same divorce laws as traditional ones, joint-custody disputes are handled the same. The judge’s ruling will be determined based on what’s in the child's best interest.

In the case of a child custody dispute, relevant factors include:

  • Capacity to provide a stable home
  • Financial ability to support your children
  • Attentiveness to children’s needs and interests
  • Child’s preference (if children are over 12 years old)

If one spouse is deemed unfit, the judge could terminate their parental rights and award full custody to the fit spouse. The unfit parent could still be ordered to pay child support, depending on the financial situations of both parties.

However, parents with full custody aren’t always eligible for child support.

What Is a Common Law Marriage?

A common law marriage is an option for couples who prefer not to be legally tied to someone for specific reasons. It means a couple is legally married even if they never went through the officiation process (or obtained their marriage license).

Few states recognize common law marriage as a legal union, and even for those that allow it, couples have to meet the conditions outlined by each state.

What if You Live in a Community Property State?

The following states are considered community property states. If you live in one of these states, any assets you or your partner own individually would be considered marital property upon marriage.

  • Arizona
  • California
  • Idaho
  • Louisiana
  • Nevada
  • New Mexico
  • Texas
  • Washington
  • Wisconsin

These states do not honor common law marriage as a legal union. You’ll have to obtain a marriage license if you reside in one of them and want to be considered legally married to your partner.

Which States Recognize Common Law Marriage?

The following states (including Washington, D.C.) recognize common law marriage. If you don’t live in one of these states, you’ll have to undergo a traditional marriage ceremony for you and your partner to be considered a married couple under the law.

  • Colorado
  • Iowa
  • Kansas
  • Montana
  • New Hampshire
  • Oklahoma
  • Rhode Island
  • South Carolina
  • Texas (calls it "informal marriage")
  • Utah

If you live in one of these states, you can qualify for a common law marriage if you meet the criteria. It isn’t enough to live together or share expenses; you’ll also have to open joint bank accounts and file joint tax returns (among other conditions).

How Can You Qualify for a Common Law Marriage?

To be eligible for this union and forgo the formal marriage process, you and your partner must abide by a set of rules. You also can’t be considered legally married overnight; it takes some time to be official.

  • You must reside in one of the common law states. If you aren’t a permanent resident of a previously mentioned state, you aren’t eligible for a common law marriage.
  • You must live together (length of time varies). Any state outlines no specific time frame, but most agree on a minimum of one year.
  • You must use the proper terms. If you want to qualify for a common law marriage, you and your partner need to refer to yourselves as husband and wife. You must also introduce yourself as a married couple to your friends and family.
  • You must share a last name. You’ll also need to start using the same last name in all relevant situations, such as on credit cards and official documentation. You can request a legal name change via a court order, or you can gradually begin updating your documents without a court order. However, the latter is not an option in every state. Make sure to refer to your local laws before proceeding with either option.
  • You must share finances. To be considered married, you’ll have joint bank accounts and file joint tax returns. You can still keep your bank account if you’d like, but you’ll need to have at least one shared understanding with your partner.
  • You must be in your right mind. For a common law marriage to be considered valid, both partners must be of sound mind. This means you both must be capable of making rational decisions regarding personal possessions, finances, and general affairs.
  • You must not be otherwise engaged. If either person seeking a common law union is married to another person, they are not eligible under the law.

How Can You Verify a Common Law Marriage?

Since a common law marriage is not traditional, you won’t be able to prove your union via a marriage license. Instead, you’ll have to produce bank statements, property deeds, and other official forms of documentation. Here are some examples of acceptable verification.

  • Life insurance policy. Your partner must be listed as a beneficiary.
  • Credit card statement. This proves you share finances.
  • Property deeds. This could mean real estate or shared property such as a car you purchased together.
  • Mail. This is only verification if you’re both addressed on the envelope or package.
  • Proof you share a last name. This could be any document that certifies a legal name change.
  • Signed affidavits. These need to be from friends and family who can vouch for your relationship and whether or not they consider you to be a married couple.

This list is far from exhaustive, as there are many ways to prove a common law marriage is valid. You might need to verify your wedding to others in certain situations, so be prepared.

Myths About Common Law Marriage

One of the biggest myths about common law marriage is that a couple must be living together for 7-10 years to be considered married under common law.

This isn’t true. There is no set time frame; however, most states agree that a minimum of one year living together is acceptable.

Other myths include:

  • You automatically acquire your spouse's assets when they pass (or become incapacitated). You’ll have to prove the marriage is valid using one of the verification methods mentioned above. Otherwise, you won’t inherit any property (unless outlined in a will) or be able to make medical decisions (unless listed as their medical proxy).
  • Property is automatically split in half. Marital property is eligible for division however the couple sees fit (or a judge rules if they can’t agree). It is not automatically divided down the middle like in community property states.
  • Common law marriage has a separate divorce process. In states that recognize common law marriages, the divorce laws that apply to a traditional marriage also apply to couples married via common law. This means the divorce process is handled the same as well.

There are several myths surrounding common law marriage. It’s essential to perform your research and be aware of your legal protections (and limitations) if this is something you're considering.

Final Thoughts

So do you need a divorce for a common law marriage? Yes — but it’s not as complicated as you might think, especially if you and your spouse get along well.

Simply refer to your local laws for specific guidance, and seek legal counsel for help navigating the process.

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