Getting through a divorce from a common-law marriage can be as complex and challenging as dissolving any legally recognized union.
Several states recognize the concept of marriage under common law. This means that couples have the same rights and responsibilities as those in a traditional marriage.
Understanding these rights and the legal obligations associated with divorce is important for anyone considering ending a relationship.
This process demands a deep understanding of the laws surrounding common-law marriages and how they intersect with the broader legal framework of divorce. Keep reading to find out how you can handle common-law marriage divorce.
Why You Need Legal Counsel in Common Law Marriage Divorce
Given the complexities of divorcing from a common-law marriage, seeking experienced legal counsel is highly recommended.
A skilled attorney can guide you through the process, from proving the existence of your common-law marriage to negotiating asset division, alimony, and child support.
Legal representation ensures your rights are protected and your interests are fully represented, particularly in cases involving substantial assets or custody issues.
Moreover, an attorney can help prevent potential legal pitfalls, such as tax liabilities or improperly divided assets, ensuring a smoother transition post-divorce. Select Law Partners – Fairfax Divorce Lawyer Can help with that.
What Is Common Law Marriage?
A common law marriage is a unique form that doesn’t require the traditional formalities of a marriage license, ceremony, or certificate.
Instead, if you and your partner meet specific requirements set by state law, you’re considered legally married even without these formal documents.
Common law marriage typically requires the couple to live together and present themselves as spouses for a certain period with the intention of being married. The specifics of common law marriage laws vary by jurisdiction.
States Recognize Common Law Marriage
Common law marriage isn’t recognized in all states, but a select few acknowledge it fully or with certain limitations. Some states that recognize the common law of marriage include:
- Rhode Island (case law)
- Kansas (Kan. Stat. §§23-2502, 23-2714(b))
- Iowa (Iowa Code §§ 252A.3.6, 595.1A)
- Texas (Tex. Fam. Code §§ 2.401, 2.402)
- District of Columbia (case law)
- Montana (Mont. Code § 40-1-403)
- Oklahoma (case law)
- Colorado (Colo. Rev. Stat. § 14-2-109.5)
- Utah (Utah Code § 30-1-4.5)
Legal Implications of Common Law Marriage
Being in a common-law marriage has significant legal implications, particularly when the relationship dissolves.
Like a traditional marriage, ending a common law marriage requires going through the divorce process, which includes the division of property, potential alimony, and other legal considerations.
The only difference in common law marriage is that you’ll have to prove you were married to your partner. In traditional marriage, it’s easy because there’s usually a marriage certificate to prove that.
Common law marriages that meet state requirements are just as binding and valid as formal marriages. And they can only end through divorce or the death of a partner.
How Do You Prove Common Law Marriage?
To prove common law marriage, you must demonstrate:
- Cohabitation for a duration that meets state requirements.
- Public acknowledgement of marital status.
- Shared use of last names.
- Participation in joint financial activities such as leases, tax filings, purchases, and beneficiary designations.
- Joint loan applications.
- Listing your partner as a “spouse” on public benefits applications.
- Having children together.
- Neither partner was married to someone else when the common law marriage was established.
However, if separated for more than two years without filing for divorce, the law (in some states like Texas) may presume no marriage intention existed. This makes proving a common law marriage more challenging if action is delayed.
The Process of Divorce in Common Law Marriage
The process involved in common law marriage divorce is as follows.
- Validating the Common Law Marriage – Before initiating divorce proceedings, couples must establish the legitimacy of their common-law union in court. This entails presenting evidence of cohabitation, shared intent for marriage, and public portrayal as spouses.
- Initiating a Formal Petition – Like conventional divorces, the journey begins with filing a formal petition. You’ll also need to outline the reasons for divorce and address pertinent issues such as asset distribution, alimony, and child custody.
- Embracing the No-Fault Option – Opting for a ‘no-fault’ divorce simplifies the process by removing the need to assign blame. Couples can cite irreconcilable differences or prolonged separation, expediting proceedings and minimizing emotional strain.
- Asset and Debt Division – Similar to traditional marriages, common-law partners accumulate assets and liabilities. Equitable distribution during divorce may involve evaluating jointly held properties and shared debts through mutual agreement or court intervention.
- Addressing Alimony and Child Support – Financial support considerations arise, with one party potentially obligated to provide alimony or child support depending on the circumstances and caregiving arrangements.
After a thorough review and approval of all aspects, the court will grant a judgment of divorce, formally terminating the common-law marriage.
While post-divorce relationships are permissible, caution must be exercised to ensure legal termination of the prior union. Premature remarriage risks invalidating subsequent relationships until the divorce judgment is obtained.
Potential Issues in Common Law Divorce
Common law marriage divorces come with their myriad of unique challenges. You may face the following issues;
- Disputing Existence of Marriage – Partners may contest the existence of a common law marriage to avoid obligations like alimony or property division. Proving the marriage’s existence often involves presenting evidence such as joint tax returns, insurance policies, or shared property.
- Child Custody – Establishing legal paternity is crucial for determining child custody or support in common-law unions. Unlike children born during a formal marriage, paternity for unmarried couples must be acknowledged or legally established. Disputes may lead to court petitions for paternity determinations.
- Bigamy – Common law marriages are subject to bigamy laws. It is, therefore, illegal to enter a new marriage before legally ending the previous one, regardless of whether it’s common law or formal.
- Varying state laws – Recognition of common law marriage separation varies by state. While some states, like Texas, do not recognize common law separations, others, like Kansas, do. Couples may choose legal separation over divorce to retain insurance policies.
Conclusion
Divorcing a common-law marriage is a complex process. But with the right knowledge and guidance, it is possible to untangle the legal ties that bind.
It is important to remember that each jurisdiction may have its requirements and procedures, so consulting with a knowledgeable attorney is crucial.
By understanding the necessary steps, you can easily and efficiently complete the common law marriage divorce and move forward.
While the path to divorce may not always be easy, it is an opportunity for growth and new beginnings.
