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Your Rights when Ending a Common Law Marriage

In some states, a couple may be considered married under the law even if they never signed a marriage certificate or held a ceremony. This is known as common law marriage.

In most states, once a couple is considered married under common law, they have the same rights and privileges as any married couple—and must face the same legal considerations when they end their relationship.

If your common law marriage is coming to an end, you can speak with a family law attorney in your area who is familiar with your state's divorce laws. Together you can determine the best way to move on from your relationship while protecting your rights.

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Understanding Common Law Marriages

In general, there are three kinds of laws: statutory, constitutional, and common law. While statutes and constitutions are specific rules and procedures intentionally created, common law is created by judicial rulings and evolves as past rulings and commonly-accepted principles in a society are applied to new situations.

How does this relate to marriage?

The most common way to become married is to fulfill the requirements of your state's marriage statute.  This typically involves obtaining a marriage license and being joined in matrimony by someone the state has vested with that power, such as a judge or a minister.

But in many states, statutory laws aren't the only means of a legal marriage. This is where common law marriage comes in.

What is common law marriage?

Whenever common law or marriage is a topic, it is important to remember that both concepts are nearly completely state topics. This means that each state will have its own definition of marriage, what is required and involved in common law marriage, and if it even recognizes common law marriages.

Generally, a common law marriage is created when a couple cohabitates a residence for a certain period of time with the intent to enter into a marital relationship and otherwise lives as a married couple.

In most states that recognize common law marriage, a couple considered married under the common law is subject to the same rights and obligations as any other married couple. The implications from this will usually involve traditional division of assets and child custody on dissolution of the relationship.

What factors are usually looked at to determine a common law marriage?

  • Filing joint tax returns
  • Referring to one another by husband and wife
  • Sharing a last name
  • Wearing wedding rights

Is common law marriage possible in my state?

Common law marriage is not recognized in every state. Both common law and statutory marriage is dependent on what state you are in. Several of the states that still allow for common law marriage, only allow it for relationships that have been around for since the middle 1990s, and more recently formed relationships are given no special status.

The laws frequently change, and the only way to be certain of the law in your area is to contact a local attorney who is familiar this subject.

The following jurisdictions recognize common law marriages to some degree:

  • Alabama
  • Colorado
  • District of Columbia
  • Georgia
  • Idaho
  • Iowa
  • Kansas
  • Montana
  • New Hampshire
  • Ohio
  • Oklahoma
  • Pennsylvania
  • Rhode Island
  • South Carolina
  • Texas
  • Utah
How do you divorce a common law marriage?

You might assume that since common law marriages are formed differently than traditional marriages, that the divorce process would have to have a special procedure. This is typically not the case.

Once you are considered common-law married, you generally assume all the rights and obligations of a normal marriage. This includes the method for dissolution of the marriage. To get a divorce, you would need to work through the traditional methods for your state.

Once again, a local attorney who practices family law will be able to provide the exact procedure you would need to follow.