Family Law

Common Law Marriage and Your Divorce

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You claim you have a common law or informal marriage and you want to get a divorce. However, to get a divorce, you first have to prove you have a valid marriage. Clearing this hurdle and proving your common law marriage might be a difficult task, and complicate ending your relationship.

Know the basics of defining a common law marriage and the proof you need to show your marriage is valid. You'll be ready to work with your divorce lawyer and move ahead with your divorce.

Defining Common Law Marriage

There are two types of marriages, statutory and common law. We all know that a marriage entered into under a state law requires a marriage license and a ceremony or exchange of vows before witnesses. For a common law marriage all you have to do is live together, right? Wrong!

To establish and prove a valid common law marriage, a man and a woman must:

  • Meet the minimum age requirements for a legal marriage
  • Live together or cohabitate for a required time
  • Show a mutual intent to be married; that is, hold yourselves out to the public as husband and wife
  • Meet these requirements within the borders of a state that still recognizes common law marriages

Where Is Common Law Marriage Legal?

Most states have abolished common law marriages and don't recognize one claimed to be created within its borders. Less than a dozen states allow common law marriage, and a few more recognize it under limited conditions, such as grandfathering in marriages created years ago. Your divorce lawyer can help you review the status of your common law marriage.

Even if a state no longer permits common law marriages, the Full Faith and Credit Clause of the United States Constitution requires all states to recognize and validate common law marriages created in states where they are legal. This means that you and your partner can create a common law marriage in one state and still have it recognized in another.

Proving Your Common Law Marriage


Proof of cohabitation isn't difficult. But, it's not enough on it's own to establish a common law marriage. It doesn't matter if you lived together or if even had children together.

Some states don't have a set time that the cohabitation must last. Any amount of cohabitation may be enough. To be sure, check with your lawyer.

"Holding Out" Requirement

Showing a present intent of being married means holding yourselves out to the public that you are husband and wife. To prove this element, most states require clear and convincing evidence in the form of:

  • Oral testimony from you and your partner that your community, employers and friends knew you as husband and wife
  • Oral testimony from credible witnesses stating they viewed you and your partner to be husband and wife
  • Objective sources such as bank records, loan applications, property deeds, leases, income tax returns and other transactions or public records identifying you as husband and wife

Why Prove a Common Law Marriage?

Once you are in a common law marriage, you don't want your status in limbo, especially when it comes to ending the relationship legally. No matter how your legal marriage was created, a legal divorce is critical in:

Getting divorced is a difficult choice for almost anyone to make, and getting through a divorce is one of the most challenging experiences someone can have. Nobody wants to face added problems about the validity of the marriage itself. Working closely with your divorce lawyer can get you through it all, and you can move on with your life.

Questions for Your Attorney

  • If I have a common law marriage, is there any way to register it with state authorities, so our status as a married couple won't be in question?
  • I have a common law marriage, and I'm moving to a state that doesn't have common law marriage. Should my move be a factor if I'm thinking about divorce?
  • If I can't prove a common law marriage and get a divorce, are there still support and property issues for a court to decide if the relationship ends?
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