Common Law Divorce Explained

When a couple who has lived together for some time chooses to go their separate ways, they might be eligible for a common law divorce. 

In the eyes of the law, common law marriage bears with it special privileges and rights. However, ending it is comparable to divorce but can be more complicated.

Common-Law Marriage Explained

Common law marriage transpires when people plan to be married, lived together as married, and hold themselves out as a married couple. The primary distinction between this relationship and traditional marriage is that there is usually no license or marriage certificate that has been assigned by the government that confirms the marital connection.

While a marriage license constitutes a written contract between the couple, common law marriage can likewise be just as enforceable and valid.

Essentials for Common Law Marriage

The primary requirement for a common-law marriage is that both individuals have the lawful capability to marry. They are both of legal age, not currently married, and have the necessary mental capacity to marry.

States that acknowledge common marriage need the parties to meet three other requirements.

First, they agree to marry. Having an understanding or intended agreement usually is not enough.

They must consciously start into this arrangement for a court to determine the marriage an enforceable contract. Second is generally that the spouses cohabit. Meaning, they live together. However, they must have more than a companion situation.

The third requirement is that they live as married to others. They may act as husband and wife. The couple may let people know that they are married or introduce one another as husband and wife.

They may own joint accounts, enter each other on tax returns, identify each other as beneficiaries of life insurance, or other behaviors that show that they are married.

Some states make this third condition easier to fulfill by having a particular form that a husband and wife can fill out at their clerk’s office. The party that wants the marriage known is the one who has the burden of verifying the authenticity of matrimony.

Common Law Divorce 101

As stated above, once a common law marriage is confirmed, it is just as lawfully valid and binding as traditional matrimony. A divorce is needed to close a common-law marriage. Getting a divorce from a common law marriage is the same method as conventional matrimony. 

Divorce methods vary depending on what state, but the process usually begins when one spouse files for separation with the court in the county in which they reside.

However, if your companion and the possible spouse dies before you have rightfully established common law marriage, you will require to verify your marriage arrangement to obtain their insurance benefits, social security benefits, property, etc.

To determine whether a common-law marriage subsisted, a court may look at:

  • If the couple confirmed contracts together, such as to obtain a vehicle or home;
  • The couple listed a joint bank account or had joint tax returns;
  • If the couple planned to be married or presented themselves as such;
  • They lived together;
  • If the couple shared household expenses and duties; and
  • If the couple raised children together.

Marriages, whether civil or common law, are accepted by every state in the US. If you are common-law married and migrate to a country that does not acknowledge such an agreement, you are still married in that country. 

This is because your wedding was valid in the state in which it transpired.

You can verify that you are married when you relocate to a different country by confirming an affidavit of marriage, which is legally binding — presenting proof of an actual legal union between two people.

Do I Require an Attorney for Common Law Divorce?

Parties included in a common-law marriage are usually afforded greater rights and have more duties imposed on them. For instance, inheritance issues may occur in which being lawfully married may make a meaningful difference.

Property rules can also utilize in the event of a divorce of the common-law spouses.

Additionally, obligations and rights to children of the spouses are made during the process. Divorce can even terminate community estate rights when suitable.

A knowledgeable and skilled common law divorce attorney can help you with any issues you may have about divorce and common law marriage.

An accomplished attorney can further educate you on your state’s particular laws concerning the matter, and help in proving your marriage. The common law divorce attorney can assist you in filing for divorce, and serve you in court, as required.

Do You Have Questions About Common Law Divorce? Ask Us.

Have questions and concerns? Need legal advice regarding divorce, family law, or DWI ?

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