Common Law Marriage and Divorce
The laws for common law marriage and divorce vary by state. It’s important to know what the law says, as a common law marriage (and a common law divorce) have different requirements than licensed marriages.
What Is Common Law Marriage?
In some states, when a couple has lived together for an extended period, their relationship can be considered a common law marriage if they meet a few other criteria and make the effort to have their union recognized by the state. There are only a few states that recognize common law marriages:
- South Carolina
- Rhode Island
- New Hampshire (only for the purposes of inheritance)
- District of Columbia
While laws differ from state to state, generally, couples must fulfill the following requirements to have their common law marriage recognized by the state:
- You hold yourself out to your community as a married couple (file joint tax returns, share the same last name, refer to each other as “husband” and “wife”)
- You are a heterosexual couple (some states have yet to change language in their laws that refer to “husband” and “wife”)
- You live together for a significant length of time
- You live in a state that recognizes common law marriages
Once a couple has their common law marriage recognized by a state, then their common law marriage will still be valid in their new state of residence, even if they move to a state that
does not recognize common law marriages.
Benefits of Common Law Marriage
Deciding whether to have a common law marriage recognized, if that is an option in your state of residence, is an important decision. Doing so, comes with risks and would involve you and your spouse entering into a legally binding commitment. However, there are several benefits to entering a common law marriage as well, such as:
- Tax exemptions
- Prison/jail visitation rights
- Child custody advantages
- Access to private records
- Hospital visitation rights
- Right to make end-of-life care and emergency medical decisions
- Inheritance rights
- Spousal support rights
- Division of property rights in case of separation
- Access to healthcare benefits
Common Law Marriage Disadvantages
Just as there are benefits to common law marriage, there are also disadvantages to it, including:
Your marital rights will not be guaranteed – Unlike a traditional marriage, even if your common law marriage meets all the necessary requirements to be recognized by the state, there will still be no presumption of the marriage’s existence. This means that since the marriage is not formalized through paperwork and a ceremony, there is no proof that your marriage was legitimately entered into the public record, which is necessary to guarantee your marital rights.
The terms of your marriage agreement will not be public – Since your marriage will not be formalized through paperwork filed with the government and a ceremony, no one will know the details of your agreement except you and your spouse. This can make it difficult to prove the existence of your common law marriage.
You may not be entitled to a divorce – If you and your spouse seek to end your common law marriage through divorce, you may not be able to because you will first have to prove the marriage existed to file for divorce. Not being able to file for divorce can have severe consequences regarding property division, child custody, alimony, and child support.
You may not be entitled to inheritance – If you cannot prove that you and your spouse were married and your husband or wife dies without leaving a will, you may not be entitled to inherit his or her estate and may be denied survivorship benefits.
Do I Need to Get a Divorce to End a Common Law Marriage?
If you and/or your spouse are seeking to end your common law marriage, you should meet with a family law attorney to discuss your options. Before you try to end your common law marriage, you must first confirm that your marriage has been recognized. If it has not been recognized, then you cannot get a divorce. If you and your spouse do not have complex issues such as child custody, division of property, and alimony to sort out, then you may not have to do anything.
However, if you have any of those types of issues to deal with, you may need to have your common law marriage recognized so that you can then get a divorce. Once you have confirmed that your common law marriage is recognized, you should be able to seek a common law divorce.
How Does Common Law Marriage and Divorce Work?
Beyond confirming that you are married, common law marriage and divorce work very similarly to traditional marriage and divorce. Through the divorce process, you can figure out how to divide up assets, decide alimony and child support, and make child custody arrangements.
Speak with a Divorce Lawyer About Common Law Marriage Today
Issues involving common law marriage can be very complicated. Therefore, talking to an experienced divorce lawyer if you are considering ending a common law marriage is crucial to ensuring that your marriage is properly dissolved. Whether it’s a traditional or common law marriage, the last thing you want to do is fail to properly end your marriage. It could have disastrous consequences for your life moving forward, especially as it concerns child custody, child support, division of property, and alimony.
Discussing your situation with a family law attorney can give you insight that you need to make the best decisions regarding your and your family’s future. Many experienced divorce attorneys will talk with you about common law marriage and divorce for free. A divorce lawyer can explain your options, examine your situation, tell you whether your common law marriage is valid, answer your questions, and discuss the best options for ending your relationship with your spouse.