Although many couples may consider themselves to be “common law married” after being together for a long period of time, a common law marriage is actually a legal status that only exists in certain states.
So if your relationship does qualify as a common law marriage and that relationship is at an end, what do you do? Is the process the same as a regular divorce? What about property division and child custody? Here is a short guide to common law marriage, where it exists, and what happens when one comes to an end.
A common law marriage is a collection of legal rights similar to that of a formal marriage without the couple having registered it with a civil or religious ceremony. Other terms used to refer to such unions are informal marriage, marriage by habit and repute, and marriage in fact. Because no marriage certificate exists to show that such a union exists, each state has an elemental test that must be met to prove a common law marriage is valid.
Although each state defines and sets out these elements differently, there are commonalities that exist:
- That the couple lives together (also known as cohabitation);
- That the couple themselves intended their relationship to be a martial one; and
- That the community saw them as a married couple.
Some jurisdictions may place additional requirements on a couple claiming a common law marriage, so always check the law in your state.
There are only a few jurisdictions left that fully recognize common law marriages as legal, with some only doing so for inheritance purposes. In addition, other states that formerly did recognize such marriages now no longer do so unless the union can be traced back to before the statutory cutoff date. The remaining states/jurisdictions that fully recognize common law marriages are:
- The District Of Columbia
- Rhode Island
New Hampshire only recognizes common law marriages for inheritance purposes. In addition, these states only recognize such unions if they can be traced to before the statutory cutoff date.
- Georgia: valid only before January 1st, 1997
- Idaho: valid only before January 1st, 1996
- Ohio: valid only before October 10th, 1991
- Oklahoma: valid only before October 10th, 1998
- Pennsylvania: valid only before January 1st, 1995
Evidence will be needed to prove that the union started prior to these dates. In 2018, South Carolina announced they no longer recognized common law marriages.
What if you begin a common law marriage in a state that allows it but then move to a state that does not? Will the other state still recognize the marriage? In short, yes. The Full Faith and Credit clause of the constitution dictates that each state has to respect the “public acts, records, and judicial proceedings of every other state.”
This applies to marriages and common law marriages, and therefore the dissolution of these marriages. So if a couple can show a valid common law marriage established in Texas, but then the couple moves to Arizona and decides to divorce, the Arizona courts have jurisdiction to dissolve the marriage.
Because common law marriages are considered the same as a licensed marriage once formed, it must go through the same legal procedures to be dissolved. That means filing a divorce petition and all other necessary documents with the family court in your state.
The process is also the same as dissolving a formal marriage, and all the same issues will need to be addressed, like child and spousal support, visitation and custody rights, property division, and any others.
To avoid paying alimony or dividing certain property, one spouse can claim that no common law marriage existed in the first place. To combat this, the other spouse can show joint tax returns, insurance policies, joint bank accounts, retirement plans, any other property held together, and other evidence to prove the existence of the common law marriage.
The judge will then take this evidence and all other facts into account (in some cases witness testimony and other documents can be used) to determine if the relationship was a legal common law marriage. It is also important to note that a common law marriage is treated the same as a formal marriage when it comes to bigamy laws as well. So you must properly (legally) end a common law marriage before you enter into another one, either common law or formal.
Getting divorced is a complex process even for those entered in formal marriages. Therefore it is doubly important that if you are looking to end a common law marriage, you seek the services of an experienced family law attorney in your state.