Family Law

Common Law Marriage and Your Divorce

By Kristina Otterstrom, Attorney
Find out more about the unique hurdles to proving a common law marriage and what doing so can mean for your divorce.

What is a Common Law Marriage?

In some states, a common law marriage can be established when a couple lives together for a long period of time, shares finances, and holds themselves out as married. A common law couple acts as though they're married, but never takes the necessary steps, such as getting a marriage license and having a formal ceremony.

States that recognize common law marriage have similar requirements, including:

  • both parties are of sound mind
  • both parties have reached the age of consent, which is generally 18
  • neither party is already married to someone else
  • the couple must have lived together for a significant period of time—the amount of time varies by state
  • both parties have shown an intent to be married, and
  • the parties must hold themselves out to the public as married.

In some states, the parties must also share the same last name, share their finances and accounts, and live together in the same home.

Where are Common Law Marriages Recognized?

Most jurisdictions have abolished common law marriage, and less than a dozen states continue to recognize the practice, including:

A handful of other states, including Georgia, Idaho, New Hampshire, Oklahoma, Ohio, and Pennsylvania allow common law marriages if they predate the state’s ban on those types of marriages. A same-sex common law marriage can be even more difficult to prove. Although same-sex marriage is now legal everywhere in the U.S., state laws on same-sex common law marriage are not fully settled.

Reasons You May Want to Prove a Common Law Marriage

If a court finds that a common law marriage was established, then the couple will be able to claim the same rights and responsibilities that are recognized between spouses, such as the right to share property and receive financial support. However, common law spouses must go through a divorce if they want to terminate their marital status.

You might wonder why anyone would prefer to go through a divorce, rather than simply break up. Divorce actually offers a number of legal benefits that aren’t available to unmarried couples. Specifically, getting a divorce can help you divide property more systematically. A divorce order is also critical for establishing spousal support or alimony. If you aren't considered legally married, you can't claim permanent or temporary alimony during a divorce, which can be essential if you're a financially dependent or unemployed spouse. Finally, a divorce allows you to remarry again without facing potential bigamy charges, otherwise, a common law spouse could sabotage your wedding plans.

Divorce, while sometimes challenging, can actually free you from your common law relationship and provide you with a fresh start.

Questions for Your Attorney

  • I'm in a common law marriage, but I'm going to move to a state that doesn’t recognize them. I’m planning to file for divorce, but will the move affect my case?
  • What happens if I can’t prove my common law marriage and obtain a divorce? Will a court still decide my property and support issues?
  • If I have a common law marriage, is there a way to register it with the state, so I don’t have to prove it at trial?

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