Ending a Common Law Marriage
Only a few states provide for a “common law” marriage, which is when two people intend to be married, live together as a married couple, and hold themselves out to the public as being married. Other states have abandoned their common law marriage provisions completely. The remaining states that allow common law marriages are: Alabama, Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas, and Utah.
The chief legal (i.e., nonreligious) difference between a common law marriage and a normal marriage is the existence of a marriage certificate or license. A marriage license is a written contract, whereas a common law marriage is an oral or implied contract. In contract law, both can be equally valid and enforceable.
Once a common law marriage is formed, it is a legal marriage – the same as a licensed marriage. Therefore, in both instances, the divorce must take place according to the legal procedures and dissolution proceedings required by the state in which the divorce is sought.
A divorce judge will consider all the normal divorce issues in a common law marriage such as child and spousal support, visitation rights, and division of marital property. Because a common law marriage is equally valid as a legal marriage, any future marriage of either spouse will not be valid prior to the dissolution of the common law marriage.
Of course, a common law spouse may argue in divorce court that there was, in fact, no common law marriage, in order to avoid spousal maintenance payments. For example, the spouse may claim that there are no joint tax returns, joint insurance policies, joint retirement plans, joint checking and savings accounts, or any other joint property. During divorce proceedings, the judge will have final say in determining whether a common law marriage exists, by considering all facts and circumstances.
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Last Modified: 05-26-2009 12:29 PM PDT
