Family Law

Common Law Marriage and Divorce: What Happens to the Kids?

By Joseph Pandolfi, Retired Judge
Find out more about ending a common law marriage when children are involved.

Is Your Relationship a Common Law Marriage?

To a large degree, the answer depends on where you live. Although once a generally accepted concept, common law marriage is currently banned by most states. And even in those states that still recognize it, you’ll have to prove you meet the state’s requirements. (Check here for more information on which states recognize common law marriage.)

Laws governing common law marriage may vary from state to state. But there are some standard elements, such as:

  • You must consider yourselves married: This “intent” to be married is at the core of common law marriage. Proof of this could include sharing all income as a married couple would and jointly owning property, like real estate or bank accounts.
  • You can’t be legally married to someone else while in your current relationship.
  • You must qualify under your state’s general marriage laws. For example, you need to meet the minimum age requirement. You must also be of sound mind, that is, mentally competent.
  • You have to hold yourselves out to the public as being married. Proof of this might consist of sharing the same last name and referring to each other as “my spouse” when among friends and the community.

Any requirement for how long you must live together will depend on your state's laws.

Custody, Visitation, and Child Support in Common Law Marriage

Proving the existence of a legal common law marriage can be a demanding task. But once you’ve succeeded, you’re on equal footing with traditionally married couples in terms of what happens to your children if you end your relationship.

Regardless of how your marriage was created, there’s only one way to officially end it—divorce. Thus, your state’s divorce laws will control child custody, visitation (also called “parenting time”), and child support issues. Be aware that in deciding these matters, the judge's top consideration will be the child’s best interests. With that in mind, let’s look at some of the basic principles of each of these topics.

Custody Fundamentals

State laws normally provide for “legal” custody and “physical” custody. The former relates to decision-making regarding a child’s welfare and upbringing (education, religion, and so on). The latter refers to where the child is going to live.

Legal custody and physical custody are not the only concepts in this area. Rather, they can be broken down further into “sole” custody and “joint” custody.

The term “sole legal custody” refers to only one parent making the important decisions in a child’s life. With “joint legal custody”, both parents share in those decisions. In divorce law today, joint legal custody is the most common outcome. However, a court will likely deny a request for joint legal custody if it determines that a parent is unfit to make those decisions due to severe mental illness or chronic substance abuse, for example.

“Sole physical custody” occurs when a child resides exclusively with one parent. A “joint physical custody” scenario arises when a child resides with both parents, anywhere from a few days a week with one parent to living six months a year with each.

Visitation ( Parenting Time)

The noncustodial parent (the one with whom a child isn't residing) will normally have visitation rights. More often than not, parents will agree to a parenting time schedule. If they can’t reach an agreement, a judge will put a schedule in place.

Having the children every other weekend, and seeing them one or two evenings a week, is a fairly standard parenting time scenario. But that’s hardly etched in stone. A myriad of options are available, and judges will attempt to accommodate the parents’ (and children’s) schedules as much as possible.

In cases where a parent could pose a danger to a child, a court is likely to order supervised visitation. For example, you’ll often find this when a parent suffers from untreated drug addiction or alcoholism. With supervised visitation, the parent can only see the child in the presence of a third party, typically a responsible relative or court-sanctioned personnel.

Child Support

The requirement to pay child support exists whether you’re married or not, and both parents must support their children. Each state has written guidelines that help judges calculate appropriate child support payments.

Parental income is the primary element used in all child support guideline formulas. Each parent's support contribution is normally based on the ratio of their individual income to the combined income total. Most state guidelines also consider how much time each parent spends with each child. Generally, increased custodial time amounts to a decrease in child support.

Note that state laws usually give judges the discretion to decide whether circumstances exist that would justify deviating from the guidelines. For example, a judge could reduce the guideline amount for a noncustodial parent with extraordinary medical expenses might.

If You’re Not in a Common Law Marriage

If your relationship is ending, and you haven’t been able to establish that it rises to the level of a common law marriage, then your state’s law regarding unmarried parents will apply. These laws vary from state to state, so where you reside will determine your rights and obligations regarding custody, visitation, and child support.

For more information on this specific issue, see “When Parents Are Unmarried”.

Ending any relationship where there are children involved can be complicated and emotionally draining. A knowledgeable divorce attorney can help guide you through the process.

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