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Divorce Procedures In Common Law Marriages

A prevalent misconception exists that merely cohabiting for a long duration automatically results in a common-law marriage. However, the truth is far from this simplistic notion. Establishing a common-law marriage often requires a set of specific conditions to be met, each with its own legal significance. This article seeks to demystify the nuances and complexities associated with common-law marriages. We will dissect how they differ from conventional marital bonds, and illuminate critical considerations one must be privy to when navigating the path of common-law divorce. Whether you’re curious about the concept or are personally entwined in such a relationship, this comprehensive guide aims to shed light on this often-misunderstood form of union.

Defining Common Law Marriage

Common-law marriage differs from a traditional marriage in that there’s no license obtained before marriage. Key elements of a valid common-law marriage are:

1. Cohabitation for a defined period (as stipulated by the state).

2. Mutual intent to live as a married couple.

3. Presentation of oneself as a married couple to the public.

While only a few states in the U.S. recognize common-law marriages, it’s crucial to determine its validity if you believe you’ve entered into one. Proving this to the court typically requires:

» A written agreement showing mutual intent to be married.

» Witness testimony confirming marital status and public portrayal as a married couple.

» Documents indicating shared surnames or references to each other as spouses. In certain states, registering the common-law marriage may also be mandatory.

states that fully recognize common law marriage

Common Law Divorce: The Process

When two individuals have established a common-law marriage and decide to part ways, the process is more intricate than simply breaking up. In fact, it closely mirrors the divorce procedure of a traditional marriage. Here’s a deeper look into this process:

1. Validation Of Common Law Marriage: Before delving into the divorce process, the couple must first establish the validity of their common-law marriage in a court of law. This typically involves presenting evidence that they cohabited for a stipulated period, intended to live as a married couple, and publicly presented themselves as such.

2. Filing A Formal Petition: The divorce process kicks off with the submission of a formal petition to the court, just like in a traditional divorce. This petition outlines the reasons for the divorce and any other pertinent issues that need to be addressed, such as property division, alimony, and child custody.

3. No-Fault Divorce Option: All states in the U.S. offer a ‘no-fault’ divorce option. This means that neither party is legally required to prove that the other spouse was the reason or at fault for the dissolution of the marriage. Couples can simply state that they have “irreconcilable differences” or have been “living separately for a specified duration” depending on the state laws. Opting for a no-fault divorce often simplifies and speeds up the divorce process, reducing both costs and emotional stress.

4. Distribution Of Assets & Liabilities: Similar to traditional marriages, common-law couples accumulate assets and liabilities over time. During the divorce process, these must be distributed equitably. This might require a thorough evaluation of jointly held properties, shared debts, and other financial elements. Both parties can agree upon a division, or, if an agreement can’t be reached, the court will decide on their behalf.

5. Alimony & Child Support: Depending on the circumstances, one party might be required to pay alimony (or spousal support) to the other. If children are involved and one parent becomes the primary caregiver, the other parent might be mandated to provide child support.

6. Finalization Of The Divorce: Only after the court has reviewed and approved all aspects of the divorce (including property division, alimony, and child custody arrangements) will a judgment of divorce be granted. This judgment formally and legally ends the common-law marriage.

7. Remarriage Considerations: Post-divorce, both parties are free to enter into another relationship. However, it’s crucial to remember that any subsequent marriage (whether common-law or formal) entered into before obtaining the divorce judgment would be considered invalid. Ensuring the previous relationship has been legally terminated is imperative before pursuing a new one.

Potential Issues In Common Law Divorce

Navigating a common-law divorce is not without its challenges. While these unions don’t follow the traditional matrimonial blueprint, they come with their own set of unique obstacles when dissolution is on the horizon. From disputes over the marriage’s very existence to intricate legal intricacies surrounding child custody, this section delves into the potential pitfalls and considerations individuals may face when parting ways in a common-law marriage scenario.

1. Disputing Existence Of Marriage:To avoid obligations like alimony or property division, a partner may deny the existence of the common-law marriage. The opposing spouse can present evidence such as joint tax returns, insurance policies, or shared property to prove the marriage’s existence.

2. Bigamy: Bigamy laws apply to common-law marriages too, making it illegal to enter a new marriage (common-law or formal) before legally ending the previous one.

3. Child Custody: In common-law unions, legal paternity must be established to decide on child custody or support. While children born during a marriage are legally considered offspring of both partners, for unmarried couples, paternity must either be acknowledged or established through adoption. Disputes can lead to court petitions for legal paternity determinations.

4. Separation: Recognition of common-law separation varies by state. While Texas doesn’t recognize common-law separations, Kansas does. Couples might opt for legal separation over divorce for reasons like insurance policy retention.


Common-law marriages, though less conventional than their traditional counterparts, bring about a unique tapestry of legal and relational intricacies. While they may seem simpler on the surface, they are governed by a framework that demands understanding and diligence. Grasping the nuances between traditional and common-law marriages is pivotal. By recognizing these differences and being well-informed about the complexities of common-law divorce, couples are better equipped to approach any challenges they may face. With this knowledge, they can traverse this distinct marital terrain with confidence, clarity, and a sense of purpose, ensuring their decisions are both informed and just.

Modern Family Law

Modern Family Law’s team of experienced family lawyers takes a compassionate approach to the practice of family law. Our experienced team of attorneys is prepared to consult with you regarding any questions related to family law matters. Using innovative technology to create an effective and efficient process for our clientele, our attorneys approach each case as a collective effort to find the best long-term solutions for each family. We understand the financial burden a family law matter can have on an individual. As such we have created our industry-first SimpleStart™ program, providing people a chance to reduce the amount of money needed upfront to start their case. For more information please give us a call or fill out a short form online to sign up for a free consultation today! Let us make a positive difference in your life.

By: MFL Team

Posted October 04, 2023

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