Family Law

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

By Joseph Pandolfi, Retired Judge
Find out more about property distribution after a common law marriage.

Are You Legally Married?

That question is easy to answer if you went the traditional route. If you had a formal ceremony resulting in your receiving a marriage certificate—you’re married. If not, your status will remain uncertain unless a court rules you meet the requirements for common law marriage.

Requirements for Common Law Marriage

Attaining common law marriage status can be difficult primarily because very few states today authorize common law marriage. And even if you reside in a state which allows it, you have to prove to a judge that your relationship meets your state’s standards. Although these may vary from state to state, there are some common, basic requirements.

Considering yourselves married is of primary importance. Without the intent to be married, the foundation for a common law marriage is missing—living together isn’t enough. You’ll also have to comply with your state’s general marriage requirements, which typically include:

  • you must have the mental capacity to enter into marriage (be of sound mind)
  • you must meet the state’s minimum age requirements, and
  • you must not be legally married to anyone else.

Finally, you have to hold yourselves out to the public as being married. You can prove this final element in several ways, including:

  • sharing a last name with your partner
  • signing a document acknowledging that you consider yourselves married
  • referring to each other as “my spouse” when with friends, family, and the public
  • opening joint bank or credit card accounts, and
  • purchasing property together.

Note that there’s no established, universal time frame for how long you must live together. Each of the states that allow common law marriage set their own specific requirements.

Moving to a Different State During Your Relationship

If a court decides your common law relationship is a legal marriage, most other states will honor that determination. But if you move to a state that doesn’t recognize common law marriage, you could have a problem.

For example, let's say you lived as a married couple with your partner for many years in Rhode Island, which authorizes common law marriage, but then you moved to California, which doesn’t recognize it. Now, your relationship has deteriorated, and a breakup is inevitable. If either or both of you wants a formal divorce—which provides rights to property and spousal support—you’re going to have to prove you’re legally married. You'll need to convince a California court that your relationship—while you were in Rhode Island—created a common law marriage. In order to do this, you'll need to show how you lived as a married couple and may have to call witnesses from Rhode Island to testify in a California court about how you portrayed yourselves to the public.

What Happens to Property If You Split Up?

As indicated above, this is where your marital status makes all the difference. If you’re legally married—traditionally or through a common law marriage—you can file for divorce. In fact, under those circumstances, you have to file for divorce if you want to officially end the relationship.

Once that happens, a court will divide the property you’ve accumulated, according to the state’s divorce laws. How that turns out depends on whether yours is a “community property” state, like Nevada, for example, or an “equitable distribution” one, like New Jersey.

Community Property States

In community property states, money earned by the couple during the marriage, as well as any property purchased with those funds, is owned equally by the spouses and divided equally upon divorce. It doesn’t make a difference if the property is only in one spouse's name.

The law does provide for separate ownership of property in some circumstances. Property either spouse brings into the marriage—for example, a bank account—is normally exempt from joint ownership. (If you commingle it with marital property, however, that may turn it into the joint property.) Additionally, property a spouse receives as a gift or through inheritance, at any time, is considered that spouse's separate property.

Equitable Distribution States

In these states, the courts consider each case on its own merits. There’s no presumption of a 50-50 split. Rather, a judge will look at several factors and then determine what the fairest division of the property would be under the circumstances. The court will consider various elements, including the length of the marriage, the spouses’ ages and their health, and their earning capacities.

Similar to community property states, gifts, inheritances, and any property a spouse brings into the marriage will normally remain separate.

Dividing Property When There Is No Marriage

If your relationship ends, and you’re not legally married, the division of property normally depends on whose name is on title for the asset. For example, if you’re living in a house with your significant other, and your name isn’t on the deed, you may have a hard time proving any ownership interest. You could try to ask for reimbursement of your contributions to the mortgage, but that may be a difficult claim to win. Whether it’s personal property (including bank accounts) or real estate, the title holder usually has the ownership rights. The outcome of these types of matters will depend on the laws and protections provided in your state.

Dividing property after a relationship can be a complex and confusing task. If you have questions, you should contact a local family law attorney for advice.

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