Ending a Common Law Marriage

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What Is Common Law Marriage?

A “common law” marriage is when two people intend to be married, live together as a married couple, and hold themselves out to the public as being married. 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.

Although the states which permit common law marriages all require (1) intent to marry, (2) cohabitation and (3) understood by the community to be married, some states may carry additional requirements. Alabama, for example, requires that the couple consummate the marriage before it can be legally valid (although it is unclear how a court would be certain of consummation if no child is born).

Which States Permit the Creation of Common Law Marriage?

Only a few states provide for a common law marriage.  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, Utah and the District of Colombia. New Hampshire will only recognize common law marriages created in New Hampshire for inheritance purposes only.

Some states permitted common law marriages in the past but do not permit their creation today. However, in order to ensure continuity in the law, some of these states will recognize common law marriages formed in the states before a certain year. These states are:

Will My Common Law Marriage Be Recognized Outside a Common Law State?

Yes, common law marriages can be separated even if a court outside a common law marriage state is hearing the case. Under the Full Faith and Credit Clause of the federal Constitution, all contracts, including oral contracts, are recognized as legally valid unless the state has a strong public policy against enforcing such a contract. Since marriages are contracts, common law marriages outside a common law marriage state are recognized outside those states.

Since all states recognize a common law marriage, all state courts have the ability to divorce a common law married couple.

How Do I End a Common Law Marriage?

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.

What Difficulties May Arise in Common Law Marriage That are Absent in Written Contract Marriages?

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.

Do I Need a Lawyer For My Common Law Divorce?

The Court process for obtaining a divorce for a written marriage can be very confusing, so a common law marriage would be even more perplexing. It may be wise to consult with an experienced family attorney to help explain your rights and to protect your interests.

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Last Modified: 03-06-2013 04:34 PM PST

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