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How a Divorce from a Common Law Marriage Works


A common law marriage doesn’t involve a marriage license, but it’s treated similarly to a traditional marriage in states that recognize this sort of union. Partners in a common law marriage, have rights and responsibilities similar to other married couples. That includes the need to go through the same legal process of divorce should they decide to split up. When a common law married couple divorces, they will deal with issues, including property division, child custody, child support and alimony, that apply to any couple ending a marriage. If you’re in a common law marriage and thinking about splitting up, it’s important to know what’s involved in a divorce. A financial advisor can help with that.

Common Law Marriage Basics

Common law marriages, also sometimes called informal marriages, are legal in some states. Where recognized, common law marriages are legally treated the same as conventional marriages. That means, among other things, when common law married couples divorce they have to go through almost the same legal divorce process required of couples who got married the usual way.

The primary difference is that, unlike conventionally married couples who formalized their union by getting a marriage license from the state, common law married couples have to prove they were married in order to get divorced. Otherwise, the same issues apply, including deciding whether to seek a no-fault divorce or one alleging some misbehavior by one spouse.

Another difference is that, unlike conventional marriages, it’s much more possible to become a spouse in a common law marriage without fully appreciating the potential legal and financial significance of the partnership. If a common law married couple separates without going through a legal divorce, one partner could later claim assets from the marriage, just like a partner in a regular marriage. Depending on the state and exact circumstances, this could include assets acquired during the marriage or brought to the marriage by the other partner.

In addition, a common law spouse who separates without obtaining a valid divorce is still legally married. That means they cannot marry again without running afoul of bigamy laws prohibiting marriage to more than one person at a time.

Proving Common Law Marriage

SmartAsset: How a Divorce from a Common Law Marriage Works

Common law divorce’s biggest difference is that while traditionally married couples have documented their union with a state-issued license, the common law marriage does not have a similarly plain paper trail. That can make it difficult to prove a couple has become married under common law, which is a necessary first step to getting divorced.

The requirements for common law marriage are set by the states, not the federal government, and can vary significantly. One common feature is that partners have to show that they were not already married to someone else before beginning the common law marriage. They also must have been of legal marriage age before the common law marriage began.

Some states require couples to live together for a certain period of time, among other requirements, in order to consider them married under common law. In other states, time cohabiting is not a factor.

In many cases, proving common law marriage comes down to collecting evidence indicating the couple lived together as a married couple and presented themselves as married. That kind of evidence might include, for instance, a mortgage loan the couple co-signed.

States Recognizing Common Law Marriage

Common law marriage is not common. In part, that’s because only a few states recognize it. The number of states where common law marriage is legal is also shrinking as more states require couples to obtain a marriage license before they can be legally joined. Here are states that recognize common law marriage:

  • Colorado
  • Iowa
  • Kansas
  • Montana
  • New Hampshire
  • South Carolina
  • Texas
  • Utah

The specifics of what constitutes a legal common law marriage can vary considerably by state. In some states that formerly allowed it, common law marriages from before the date it was abolished may still be recognized. Also, a couple that is married under common law in one state is still married if they move to another state that does not recognize common law. Generally, the movement is for fewer states to recognize these unions, as several have ended the practice in recent decades while a much smaller number have move to formally permit common law marriage.

Bottom Line

SmartAsset: How a Divorce from a Common Law Marriage Works

Common law marriage requires a divorce just as a conventional marriage does. The process is the same whether a couple has a marriage license or is recognized as married under common law, as is possible in a small and dwindling number of states. One significant difference is that a common law married couple seeking to divorce has to first prove they are married under the laws of that state, despite not having a marriage license. Common law couples who split up can run into trouble later on, including being unable to legally marry again, if they don’t obtain a formal divorce decree from a judge.

Financial Planning Tips for Divorce

  • If you are in a common law marriage and are contemplating divorce, a financial advisor can help you determine the potential impact on your personal financial situation. SmartAsset’s free tool matches you with up to three vetted financial advisors who serve your area, and you can interview your advisor matches at no cost to decide which one is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
  • Married couples sometimes file taxes separately in order to avoid the marriage tax penalty. This occurs when married people would owe more on their taxes by filing as a couple than if they filed separately. It can affect moderate- and high-income couples whose earnings are approximately equal.

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