How to file for divorce from a common law marriage

Last updated 2026-07-11

What is a common law marriage, and does yours actually qualify?

Not every long-term relationship qualifies as a common law marriage. Pin this down before you file anything.

A common law marriage is a legally recognized marriage created without a license or ceremony. The couple holds themselves out to the world as married, both parties agree to be married, and they live together. The exact requirements vary by state, but those three elements show up almost everywhere. Texas, for example, requires that the couple "agreed to be married, lived together in this state as husband and wife, and represented to others that they were married" under Texas Family Code Section 2.401 ^[1].

Here's the current list of states that still recognize new common law marriages: Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Texas, and Utah ^[2]. That's roughly 8 to 10 states depending on how you count New Hampshire and Utah's conditional recognition. Every other state stopped recognizing them at some cutoff date, though they honor common law marriages formed in states where they were valid.

If you moved from Texas to California after establishing a common law marriage in Texas, California will treat you as legally married even though California itself hasn't recognized new common law marriages since 1895 ^[3]. This matters enormously. You need a divorce no matter where you live now, as long as your common law marriage was valid where it was formed.

If you're not sure whether your relationship meets your state's standard, a one-time consultation with a divorce attorney is genuinely worth the money before you file. That single determination affects everything that follows.

Do you actually need a divorce, or can you just separate?

You need a real, court-issued divorce. There is no alternative.

This surprises a lot of people. The reasoning goes: we never got a license, so we don't need a court to end it. That reasoning is wrong. Once a common law marriage exists, it has exactly the same legal status as a ceremonial marriage. The U.S. Supreme Court addressed the principle in Meister v. Moore (1877), holding that common law marriages are "as valid as any other." Every state that recognizes them treats them identically to licensed marriages for property rights, inheritance, spousal support, and divorce ^[4].

Walk away without filing and you are still legally married. You can't remarry. Your partner keeps inheritance rights. Property acquired during the relationship may still count as marital property subject to division. Debts can still attach to both of you.

The good news: if your split is amicable and you agree on property division, debt, and any children involved, you likely qualify for an uncontested divorce, the fastest and cheapest path. Most common law couples land here because they've been together informally and want a clean legal end without courtroom drama.

Which states recognize common law marriage, and what are their rules?

Eight to ten states recognize new common law marriages as of 2024. This table covers the active ones, the key requirements, and any registration option ^[2][5].

State	Key Requirements	Any Formal Registration Option?
Colorado	Mutual consent + cohabitation + holding out as married	No
Iowa	Intent to marry + cohabitation + public declaration	No
Kansas	Capacity + present agreement + cohabitation	No
Montana	Capacity + agreement + cohabitation	No
New Hampshire	Cohabitation + reputation as married (inheritance only)	No
Oklahoma	Agreement + cohabitation + holding out	No
Rhode Island	Serious intent + cohabitation	No
South Carolina	Intent + cohabitation + public recognition	No
Texas	Agreement + cohabitation + representation to others	Optional Declaration of Informal Marriage (Form VS-165)
Utah	Court or administrative finding required	Petition to establish

Texas is the most permissive about paperwork. Couples can file a Declaration of Informal Marriage with the county clerk, which makes proving the marriage much easier if it ever becomes relevant in court ^[1]. Most states have no such form, so proving the marriage existed falls on whoever asserts it.

If your state isn't on this list, check when it stopped recognizing common law marriages. Pennsylvania stopped in 2005. Georgia stopped in 1997. Alabama stopped in 2017. If your relationship started before those cutoff dates and met the requirements then, the marriage may still be valid, and you still need a divorce ^[3].

How do you prove a common law marriage existed before filing for divorce?

This is frequently the hardest part of the whole process, and it catches people off guard.

In a standard licensed marriage divorce, no one disputes that a marriage existed. The certificate is the proof. In a common law marriage divorce, either party can contest whether a marriage ever formed. If the higher-earning partner suddenly claims you were "just dating," the burden falls on you to prove otherwise.

Evidence courts accept includes joint tax returns filed as married filing jointly, shared lease or mortgage documents with both names, joint bank accounts, beneficiary designations on life insurance or retirement accounts, affidavits from friends and family who knew you as a married couple, social media posts or holiday cards where you referred to each other as husband and wife, and any document where one of you took the other's last name.

The Texas Supreme Court in Eris v. Phares noted that courts look at the totality of the circumstances rather than any single piece of evidence. Gather as much of this as you can before you file, particularly if you anticipate any dispute about whether the marriage was real.

When both parties agree the marriage existed and the divorce is uncontested, this proof requirement is largely administrative. You'll still typically allege the common law marriage in your petition, but the other party's signed agreement waives the need to prove it at a hearing. That's another reason the uncontested route is simpler here.

What is the step-by-step process for filing the divorce?

The filing process mirrors a standard divorce almost exactly. Here's how it works in practice.

Step 1: Confirm you meet residency requirements. Every state has them. Texas requires one spouse to have lived in the state for at least 6 months and in the filing county for at least 90 days ^[1]. Colorado requires 91 days of domicile ^[6]. Check your state's statute. Residency is a threshold requirement, not a technicality courts overlook.

Step 2: Get the right forms. Go directly to your state's court self-help center for the official packet. Most state court websites host these now. Texas forms are at eFileTexas.gov. Colorado's are on the Colorado Judicial Branch self-help site. Skip random internet forms unless you confirm your court approves them.

Step 3: Complete the petition. You'll allege the existence of the common law marriage, its start date (your best estimate is fine if you don't have a Declaration on file), and the grounds for divorce. Most states allow no-fault grounds, meaning you state the marriage is insupportable or has suffered an irretrievable breakdown. No proof of fault required ^[4].

Step 4: File with the court clerk and pay the filing fee. Fees range from about $50 in some counties to over $400 in places like Los Angeles, though that's for licensed marriages. Expect $100 to $350 for most common law marriage divorces filed in their states of origin ^[7].

Step 5: Serve your spouse. Even in an uncontested divorce, formal service is usually required unless your spouse signs a waiver of service. Check your county's rules.

Step 6: Wait out the mandatory waiting period. Texas has a 60-day waiting period from the filing date ^[1]. Colorado has 91 days ^[6]. Iowa has none. This is the minimum. Uncontested divorces typically finalize within 3 to 6 months depending on court backlog.

Step 7: Attend the final hearing (if required) or submit your decree by agreement. In many uncontested cases, you submit the final decree and a waiver of appearance for the judge to sign without either party showing up.

For the paperwork side of an uncontested split, DivorceClear's $149 document packet generates state-specific forms from your answers, which saves hours of formatting and filing-rules research.

If children are involved, you'll need a parenting plan and child support calculation. A child support calculator gives you the baseline figure your state's formula produces before you finalize that agreement.

How much does a common law marriage divorce cost?

The total cost depends almost entirely on whether your divorce is contested or uncontested, and on your state's filing fees.

For an uncontested divorce where both parties agree on everything, the out-of-pocket costs are the court filing fee (typically $100 to $350), a service of process fee if you use a process server ($50 to $100), and any document preparation or attorney review fee you choose to pay. Total all-in: $150 to $600 in most cases ^[7].

For a contested divorce, attorney fees average $11,300 per person according to a 2019 survey by Martindale-Nolo Research, with contested cases involving court hearings averaging $17,100 or more ^[8]. A contested common law case can cost even more, because the existence of the marriage itself may be litigated before property division even starts.

The marriage-existence dispute is the one wild card unique to common law cases. If your ex claims you were never married, you may need discovery, depositions, and a trial just to establish that a marriage existed. That pushes attorney fees into the five-figure range fast.

This is why gathering evidence of the marriage (joint tax returns, shared accounts, anything showing you held yourselves out as married) before filing is more than helpful. It's financially important. A well-documented common law marriage that neither party disputes moves through the court as cheaply as any standard uncontested divorce.

How is property divided in a common law marriage divorce?

Property division follows the exact same rules as any other divorce in your state. There are no special rules for common law marriages.

In community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin), marital property is generally split 50/50. Separate property you brought into the marriage or received as a gift or inheritance stays yours ^[9].

In equitable distribution states (most states), courts divide marital property equitably, meaning fairly but not necessarily equally. Factors include the length of the marriage, each spouse's income and earning capacity, and contributions to the household.

The tricky part with common law marriages is pinning down the start date. Property acquired before the marriage formed is separate property. Property acquired after is marital. If you and your partner disagree about when the marriage actually began, that disagreement affects who owns what.

Debt works the same way. Debt incurred during the marriage is typically marital debt subject to division. Debt one of you brought in before the marriage formed belongs to that person.

For detailed questions about alimony or spousal support in your settlement, the rules that apply to licensed marriages apply here too. Courts weigh the same factors: length of marriage, earning disparity, standard of living during the marriage, and each party's ability to support themselves.

What happens with children from a common law marriage?

Custody and support are entirely unaffected by the type of marriage. The court's only concern is the best interests of the child.

Children born to a common law married couple have the same legal status as children of a licensed marriage. Parentage is presumed. Custody arrangements, parenting plans, and child support all run through the standard family court process in your state, identical to any other divorce with children.

Child support is calculated using your state's formula, usually based on each parent's income and the custody split. If you need a starting point before negotiating, a child support calculator shows you the formula output for your income levels.

One area where common law marriage can complicate things: if paternity was never formally established and the couple now disputes whether a marriage existed, establishing the father's legal rights may require a separate paternity action. This is uncommon but worth knowing if you expect a dispute.

For the overwhelming majority of common law couples divorcing amicably, custody and support work exactly like any other divorce. Draft a parenting plan you both agree to, include it in your decree, and the court will typically approve it as long as it serves the child's interests.

Can you file an uncontested divorce from a common law marriage without a lawyer?

Yes. In most cases, absolutely yes.

Every state that recognizes common law marriages has a self-help path for uncontested divorce. Three conditions matter: both parties agree a marriage existed, both agree on how to divide property and debt, and both agree on any custody and support terms. Check all three boxes and you don't need a lawyer.

Bookmark the self-help centers for the main common law marriage states. Texas has extensive DIY divorce resources at texaslawhelp.org ^[10]. Colorado's Judicial Branch self-help page at courts.state.co.us walks through the entire process ^[6]. Iowa Legal Aid at iowalegalaid.org has plain-language guides too ^[11].

One exception. If there's genuine doubt about whether a common law marriage existed, or if one party is going to contest it, get at least a divorce lawyer consultation before filing. Litigating a marriage's existence pro se is genuinely difficult.

For the divorce papers themselves, the petition, financial disclosures, settlement agreement, and final decree all need to be state-specific and formatted to your county's rules. Getting that right without an attorney means using your state court's official forms or a reputable document service. The paperwork is well within a careful person's ability, but the formatting and completeness requirements vary by county and are worth double-checking.

This article is general legal information, not legal advice. For advice specific to your situation, consult a licensed attorney in your state.

What if your common law marriage was formed in one state but you now live in another?

You can generally file for divorce in your current state of residence, as long as you meet that state's residency requirements.

The Full Faith and Credit Clause of the U.S. Constitution (Article IV, Section 1) requires states to honor the legal acts of other states, and this includes marriages ^[4]. Form a valid common law marriage in Texas and move to Illinois, and Illinois courts will treat you as married even though Illinois doesn't recognize new common law marriages. You'd file for divorce in Illinois under Illinois residency rules.

The complication: you'll need to establish, in your Illinois court filings, that the common law marriage was validly formed under Texas law. That usually means citing the Texas statute and providing evidence your relationship met Texas's requirements. It adds a layer compared to a standard Illinois divorce, but it's entirely doable.

If both parties moved to the same new state, file there once you meet residency. If you've split up across different states, you can generally file wherever one of you has met the residency requirement. The court in that state has jurisdiction over the divorce even if the marriage was formed elsewhere.

Start at your state court's self-help center. They often have specific guidance for out-of-state marriages. Your clerk of court can confirm what documentation you'll need to establish the out-of-state common law marriage.

How long does a common law marriage divorce take?

For an uncontested case with no children and straightforward property, expect 3 to 6 months from filing to final decree in most common law marriage states. That range accounts for mandatory waiting periods and court scheduling.

Texas has a 60-day mandatory waiting period after filing. You cannot get a final decree before day 61 regardless of how fast everything else moves ^[1]. Colorado requires 91 days ^[6]. Iowa has no mandatory waiting period, so an uncontested Iowa case can finalize in a matter of weeks if the docket allows.

Contested cases, or cases where the existence of the marriage is disputed, take much longer. Six months to two years is realistic for a contested common law marriage case, mostly because of discovery around proving the marriage and the court scheduling involved.

Court backlogs vary enormously by county. Urban Texas courts (Harris, Travis, Dallas counties) run longer waits than rural ones. Call your local clerk's office about current wait times before you expect a specific close date.

The overall divorce rate in America has declined in recent decades, but common law marriages are a small, specific subset of cases. Nobody has good population data on common law divorce timelines separate from licensed-marriage data. The 3 to 6 month figure comes from state court processing norms rather than a specific study.

Frequently asked questions

Is a common law marriage the same as a domestic partnership?

No. A domestic partnership is a registered legal status created by filing paperwork with the state or local government. A common law marriage forms through behavior: living together, agreeing to be married, and holding out to the public as a married couple. They're different legal statuses with different rights and different termination procedures. Some states recognize both. Most recognize neither for new couples.

What if my partner denies we were ever in a common law marriage?

You'll need to prove the marriage existed in court. Evidence includes joint tax returns filed as married, shared leases or mortgages, joint bank accounts, named beneficiaries on insurance policies, and testimony from people who knew you as a couple. If the dispute is real, you almost certainly need an attorney. This is one of the genuinely harder legal battles in family court because it requires establishing facts before property division can begin.

Do I need a specific form that says 'common law divorce'?

No. There's no separate form for a common law marriage divorce. You use the standard divorce petition your state's court provides. In your petition, you allege that a common law marriage existed and state its approximate start date. The rest of the forms, financial disclosures, settlement agreement, and final decree are identical to those used in a licensed marriage divorce.

Can I get alimony after a common law marriage?

Yes. Spousal support (alimony) is available in common law marriage divorces on the exact same basis as licensed marriage divorces. Courts look at the length of the marriage, each spouse's income and earning capacity, the standard of living during the marriage, and each party's ability to be self-supporting. There's no restriction on alimony simply because the marriage didn't involve a license.

What happens to property we bought together before the common law marriage technically formed?

Property acquired before the marriage formed is generally treated as separate property, belonging to whoever purchased or titled it. The hard question is establishing exactly when the marriage formed, since common law marriages don't have a clear start date like a wedding. Courts look at when all required elements were in place. This is often a point of negotiation or dispute in common law marriage property division.

How do I file for divorce from a common law marriage in Texas specifically?

File a Petition for Divorce in the district court in the Texas county where either spouse has lived for at least 90 days. You'll need to have lived in Texas for at least 6 months. Allege the common law marriage under Texas Family Code Section 2.401. Use forms from texaslawhelp.org or eFileTexas.gov. A 60-day waiting period applies from the filing date. Filing fees vary by county but typically run $250 to $350.

Can my common law spouse claim half my retirement account?

Potentially yes. Retirement account contributions made during the marriage are typically marital property subject to division, just as in a licensed marriage divorce. To actually transfer those funds, you'll need a Qualified Domestic Relations Order (QDRO) naming your spouse as an alternate payee. The plan administrator and the court must approve it. This applies equally to common law marriages.

We lived together in a state that doesn't recognize common law marriage. Are we married?

Almost certainly not. If your state doesn't recognize common law marriages and you never lived together in a state that does, no common law marriage formed. You can separate without a divorce. The exception is if you previously lived together in a state that does recognize them and met that state's requirements before moving. In that case, the marriage formed where you were living at the time and remains valid.

Does a common law marriage need to be proven before I can file for divorce?

You allege the common law marriage in your petition. You don't need to prove it before filing. Proof becomes necessary only if your spouse contests the marriage's existence. In an uncontested case where both parties agree a marriage existed, the acknowledgment in their signed filings is typically sufficient for the court to proceed. The filing and the contested-proof question are separate stages.

How does a judge decide if a common law marriage existed?

Judges look at the totality of circumstances. Did both parties intend to be married? Did they live together? Did they tell others they were married? Evidence includes how they filed taxes, whose name was on joint accounts, how they introduced each other socially, and whether one spouse took the other's last name. No single factor is decisive. Courts weigh the overall picture.

Can I file for an uncontested divorce from a common law marriage online?

In many states, yes. Texas, Colorado, and Iowa all have some degree of e-filing available for divorce petitions. You'd still use the same forms as a paper filing. Some states let you submit everything electronically and receive your final decree by mail without ever appearing in court, provided the divorce is uncontested and no minor children are involved, or you and your spouse agree on all custody terms.

What is the filing fee for a common law marriage divorce?

Filing fees for divorce in common law marriage states generally run $100 to $350, paid to the county clerk when you file your petition. Texas counties typically charge $250 to $350. Colorado ranges from $195 to $230 depending on the county. Fee waivers are available for low-income filers in most states. Ask the clerk for a fee waiver application (usually called a Statement of Inability to Afford Payment) when you file.

Do both spouses have to agree the common law marriage existed for an uncontested divorce to work?

Yes. If one spouse denies the marriage existed, the divorce cannot proceed as a standard uncontested case. The court would first need to determine whether a marriage formed before addressing any divorce terms. That turns a simple filing into contested litigation. Both parties acknowledging the marriage is what makes an uncontested common law marriage divorce possible and affordable.

Is there any way to end a common law marriage without going to court?

No. Every state that recognizes common law marriages requires a court-issued divorce decree to end one. You cannot dissolve a valid marriage through a private agreement, a notarized separation document, or simply moving out. If you attempt to remarry without a divorce decree, that second marriage is legally void. The only legal ending is a court judgment of divorce or, in rare cases, an annulment if grounds exist.

Sources

1. Texas Legislature, Texas Family Code Section 2.401 (Informal Marriage): Texas requires that a common law couple 'agreed to be married, lived together in this state as husband and wife, and represented to others that they were married'; also establishes the 60-day waiting period and 6-month/90-day residency rule for divorce.
2. National Conference of State Legislatures, Common Law Marriage by State: Lists the states that currently recognize common law marriages: Colorado, Iowa, Kansas, Montana, New Hampshire (inheritance), Oklahoma, Rhode Island, South Carolina, Texas, and Utah.
3. Cornell Law School Legal Information Institute, Common Law Marriage: States that do not recognize new common law marriages must still honor those validly formed in states that do, under full faith and credit principles; California stopped recognizing them in 1895.
4. U.S. Constitution, Article IV Section 1 (Full Faith and Credit Clause) via National Archives: Requires states to give full faith and credit to the public acts, records, and judicial proceedings of every other state, including marriages validly formed elsewhere.
5. Colorado Judicial Branch, Self-Help Resources for Divorce: Colorado requires 91 days of domicile before filing for divorce and recognizes common law marriages formed in the state.
6. Colorado Revised Statutes Section 14-2-109.5 (Validity of Common Law Marriages): Colorado recognizes common law marriages formed by mutual consent and cohabitation; the 91-day waiting/residency requirement for divorce also appears in Colorado dissolution statutes.
7. U.S. Courts, Filing Fees Schedule: Court filing fees for civil and family matters vary by state and county; divorce filing fees nationally range from approximately $50 to over $400 depending on jurisdiction.
8. Martindale-Nolo Research, Divorce and Attorney Fees Survey 2019: Average attorney fees in a divorce are $11,300 per person overall; cases involving a court hearing average $17,100 or more.
9. IRS Publication 504, Divorced or Separated Individuals: Community property rules in the nine community property states affect how marital income and assets are divided; separate property brought into the marriage is not subject to division.
10. Texas Law Help, Divorce Self-Help Center (texaslawhelp.org): Provides state-approved DIY divorce forms and instructions for Texas residents, including common law marriage divorce petitions.
11. Iowa Legal Aid, Family Law Self-Help Resources: Iowa recognizes common law marriages and provides plain-language guides for DIY divorce for Iowa residents.
12. South Carolina Judicial Department, Family Court Self-Help Resources: South Carolina recognizes common law marriages and provides family court self-help resources including divorce petition forms.