Last updated 2026-07-11
TL;DR
To divorce a common law spouse, you first have to prove the marriage was real. States that still recognize common law marriage look for three things: you lived together, you agreed you were married, and you told the world you were spouses. The proof ranges from joint tax returns to a neighbor's testimony. No proof, no property division, no alimony, no support rights.
What is common law marriage and why does it matter for divorce?
A common law marriage is a legally valid marriage with no ceremony and no license. No officiant. No paperwork on file. No witnesses required at the moment it forms. If your state recognizes it and you and your partner met the legal test, you are married in the eyes of the law. You can't just pack a bag and leave. You need a formal divorce, with every property, debt, and support consequence that comes with one.
Only 8 states currently allow new common law marriages to form: Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Texas, and Utah [1]. Washington D.C. recognizes them too. Several other states, including Alabama, Georgia, Idaho, Ohio, and Pennsylvania, stopped recognizing new common law marriages after specific cutoff dates but still honor unions formed before those dates [2].
The hard part is proving the marriage happened at all. There's no license to pull from a county drawer. A judge won't take your word for it, and neither will your spouse if they're fighting the claim. You build a record instead.
This reaches past the divorce decree. Fail to prove the marriage and you lose the right to equitable distribution of marital property, spousal support (alimony), and in some states survivor rights to a pension or Social Security spousal benefits. The money on the line is real.
Which states still recognize common law marriage in 2025?
The list is short and it decides everything. If your state isn't on it, and you didn't form a common law marriage in a recognizing state before you moved, you don't have one. Courts apply the law of the state where the marriage formed, not the state where you file the divorce [3].
| State | Still forming new common law marriages? | Notes |
|---|---|---|
| Colorado | Yes | C.R.S. § 14-2-109.5 |
| Iowa | Yes | Iowa Code § 595.1A |
| Kansas | Yes | K.S.A. § 23-2502 |
| Montana | Yes | MCA § 40-1-403 |
| New Hampshire | Limited | Inheritance purposes only; RSA 457:39 |
| Oklahoma | Yes | 43 O.S. § 1 |
| Rhode Island | Yes | Common law, no specific statute |
| South Carolina | Yes | Common law, no specific statute |
| Texas | Yes | Tex. Fam. Code § 2.401 |
| Utah | Yes | Utah Code § 30-1-4.5 |
| Washington D.C. | Yes | D.C. Code § 46-401 |
| Alabama | No | Abolished Jan. 1, 2017; earlier marriages still valid |
| Georgia | No | Abolished Jan. 1, 1997 |
| Idaho | No | Abolished Jan. 1, 1996 |
| Ohio | No | Abolished Oct. 10, 1991 |
| Pennsylvania | No | Abolished Jan. 24, 2005 |
Form a common law marriage in Texas, then move to California, and California will recognize the Texas marriage for divorce purposes under the Full Faith and Credit Clause. You can divorce in California [3]. You'll still have to prove the Texas marriage met Texas requirements.
Texas spells it out more clearly than anyone. Texas Family Code § 2.401 says a common law marriage is proved by showing the couple "agreed to be married and after the agreement they lived together in this state as spouses and there represented to others that they were married" [4].
What are the three legal elements courts require you to prove?
Every state that recognizes common law marriage runs some version of the same three-part test. You generally have to prove all three. Miss one and the judge can find no marriage existed.
1. Capacity to marry. Both people were legally able to marry. Both of legal age, neither already married to someone else. This element rarely gets fought, but it can bite you if a prior divorce finalized late in the relationship.
2. A present agreement to be married. Not an agreement to live together. Not an agreement to marry someday. Courts want a mutual, present-tense agreement that you are married right now. A promise to marry in the future doesn't count [5]. Here's the catch: this agreement is almost never written down. Courts infer it from what you did.
3. Cohabitation and holding out. You lived together and told the world you were spouses. "Holding out" means neighbors, family, employers, and your community knew you as a married couple. A private understanding you kept secret usually fails this test.
Some states tack on cohabitation for a set period. Texas has no minimum. Still, a two-week cohabitation is a much harder sell than five years. Utah runs its own version: a court has to validate the marriage, and the informal marriage statute builds in a cohabitation requirement [1].
Most states use the preponderance of the evidence standard, meaning more likely than not the marriage existed. A few use clear and convincing evidence, which is a higher bar. Check which one applies through your state court's self-help center before you count on the easier standard.
What evidence actually proves a common law marriage in court?
This is where the legal theory turns into a pile of paper on your kitchen table. Courts weigh the totality of the evidence, so no single document wins or loses the case. You want a stack that tells one consistent story.
Documents that carry the most weight:
- Joint federal or state income tax returns filed as "married filing jointly" or "married filing separately." The IRS requires married status to use those filing statuses, and courts treat this as strong evidence of mutual intent [6].
- A deed, mortgage, or lease listing both people as spouses or as "husband and wife."
- Life insurance policies naming the other person as a spouse or beneficiary.
- Employer benefits enrollment forms listing the other person as a spouse for health insurance.
- Bank or investment accounts titled jointly and referencing the marital relationship.
- Wills or estate documents that call each other spouses.
- Social media profiles, anniversary posts, or photos captioned "my wife" or "my husband" over a sustained stretch of time. Courts have accepted this as evidence of holding out [5].
Testimonial evidence:
- Testimony from family, friends, coworkers, neighbors, or church members who knew you as a married couple.
- Your own affidavit describing when you agreed to be married, how you lived, and how you presented yourselves.
Official records:
- Hospital admission forms listing the other person as a spouse.
- A shared last name on ID, passport, or school records (a name change alone doesn't prove marriage).
- Mail addressed to "Mr. and Mrs." at a shared address.
If you're the one fighting a partner's claim, run the same list backward. Tax returns filed "single," separate finances, different addresses on official records, and witnesses who never knew you as a couple all cut against a common law marriage claim.
How do you file for divorce when there's no marriage certificate?
The path looks like any other divorce in your state, plus one extra step: you have to establish the marriage existed before the court can move on to dividing anything.
In most recognizing states you file a Petition for Divorce (or Dissolution of Marriage) the same way any married person does. You check the box for "informal marriage" or "common law marriage" if the form has one, or you note it in your pleading. Texas has its own wrinkle. Under Texas Family Code § 2.401(b), there's a rebuttable presumption that no marriage existed if the couple separates and no divorce suit is filed within two years of separation [4]. Wait too long in Texas and you're fighting uphill to beat that presumption.
You or your attorney then attach the supporting documents to the initial filing, or bring them to a hearing the court sets to decide marital status. When both sides agree the marriage existed and agree on the terms, that hearing is often quick or handled on the papers.
If your spouse denies the marriage, the court holds an evidentiary hearing before the divorce goes anywhere. Your simple uncontested case just became contested litigation. That's the point where hiring a divorce attorney beats going it alone.
Couples who agree on everything, including that they were married, can still use the uncontested route. You'll need divorce papers that reflect the informal marriage and follow your state's rules. DivorceClear's $149 document packet is built for uncontested cases and walks you through the state-specific forms. Common law marriages add wrinkles, so run your situation past your state court's self-help center before you file solo.
The filing fee is identical no matter how the marriage formed. State divorce filing fees run from roughly $75 in Wyoming to $435 in California, with most states landing between $100 and $300 [7].
What happens to property and debt if the court recognizes the common law marriage?
Once the court recognizes the marriage, property division runs on the same rules as any divorce in that state. Nine states use community property rules (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin). The rest use equitable distribution, where a judge divides marital property fairly, not always 50/50 [8].
The headache for common law couples is sorting which assets count as marital. Courts look at when the marriage began, not when you first moved in together (unless those happened the same day). Property you picked up before the marriage formed generally stays separate. Property acquired after the agreement-to-be-married date is marital.
Can't pin down the exact date the marriage started? Courts often use the earliest date you can prove. That's a direct financial reason to gather every document that shows an early marital agreement.
Debt follows the same logic. Debt run up during the marriage gets divided. Debt one partner carried in before the marriage formed generally stays with that person.
Spousal support is on the table too. Courts apply the same alimony factors as any divorce: length of the marriage, income gap, standard of living, and each spouse's earning power. A long common law marriage with deep financial entanglement can produce a real alimony award, same as a ceremonial one. See our breakdown of alimony for how courts run the math.
What if one partner denies the common law marriage ever existed?
This is the ugly scenario. Your partner says "we were never married," and you have to prove otherwise to protect your property or get support. Now you're in a contested proceeding. The evidentiary hearing can drag on for months and pulls in witness testimony, subpoenas for financial records, and legal argument.
A few things about what actually moves a judge when the marriage is contested.
Tax returns are probably the single strongest document you can hold. Sign joint returns as "married filing jointly" for years and it's very hard for your partner to later claim you weren't married. The IRS definition of married is broader than most people think, and self-reporting as married on a federal return reads as an admission in most family law proceedings [6].
Flip it and the same force works against you. If one or both of you filed as "single" for the whole relationship, that guts a marriage claim. Judges notice the contradiction.
Social media is the newer battlefield. Screenshots of posts calling the other person a husband or wife, tagged anniversaries, or a "married" relationship status have been used as evidence in contested common law marriage cases in Texas and Colorado courts [5].
Facing a contested fight, get a divorce lawyer. The stakes and the procedure are steep enough that representing yourself in a contested common law dispute is a genuine risk. Family lawyers charge $200 to $400 an hour in most markets, and a contested hearing can run $3,000 to $10,000 or more.
Does a common law marriage in one state get recognized if you move?
Generally yes. Under the Full Faith and Credit Clause of the U.S. Constitution (Article IV, Section 1), states must give "full Faith and Credit" to the public acts, records, and judicial proceedings of every other state [3]. A common law marriage validly formed in Texas doesn't evaporate when you move to California, even though California won't let new ones form.
The word doing the heavy lifting is "validly." The state where you file will look back at whether the marriage met the requirements of the state where it formed. Move from Texas to Illinois after three years of living together and believe you had a Texas common law marriage? An Illinois court will apply Texas law (Texas Family Code § 2.401) to decide whether the marriage really existed before it grants a divorce [4].
This cross-state issue trips up people who've lived in several places. Say you formed what you think was a common law marriage in Colorado, moved to Kansas for two years, then landed in Ohio. The Ohio court has to recognize the Colorado marriage. But you prove it under Colorado's requirements, not Kansas's or Ohio's.
One nuance worth knowing. New Hampshire recognizes common law marriage only for inheritance. Form a New Hampshire common law marriage and you might inherit from a deceased partner, but that recognition doesn't stretch to divorce the same way. The scope there is genuinely narrow.
How long does a common law marriage divorce take?
It depends almost entirely on whether both of you agree. Agree the marriage existed and agree on how to split everything, and your timeline matches any uncontested divorce in your state, plus maybe a few weeks to gather documents.
Most states impose a mandatory waiting period after filing before the divorce is final. Texas requires 60 days [4]. Iowa requires 90 days. Colorado has no mandatory waiting period, but the administrative process usually runs 90 days or more. A contested divorce where the marriage itself is in dispute can stretch one to three years, especially with significant property involved.
Evidence gathering is the piece that adds time even when everyone cooperates. Requesting tax transcripts from the IRS (you can do this at IRS.gov using Form 4506-T), subpoenaing old bank records, or tracking down former neighbors for testimony can add weeks or months. Start collecting before you file.
If you're uncontested and both sides will stipulate the marriage existed, many courts let you drop a short statement in the divorce petition setting the formation date and circumstances, backed by one or two key documents, and skip a separate hearing altogether.
What is a declaration of informal marriage and should you file one?
A declaration of informal marriage is a form you file with your county clerk to officially register a common law marriage. Texas runs the best-known version, under Texas Family Code § 2.402 [10]. Colorado has a similar process under C.R.S. § 14-2-109.5 [1].
Filing one isn't required to have a valid marriage. A common law marriage can be perfectly valid and never registered. But if you did file, you created an official record, and that record is gold in a divorce because it directly establishes the marriage and its formation date. No inference from scattered documents needed.
In a common law marriage now and haven't filed a declaration? Consider doing it. It's cheap and simple (fees usually under $50) and it could save you thousands in legal fees if you ever have to prove the marriage. It helps with estate planning, insurance claims, and federal benefits too.
Didn't file one and now heading toward divorce? Don't lose sleep. The absence of a declaration is not evidence against the marriage. Courts handle unregistered common law marriages every day. You're just doing by hand what the declaration would have done for you automatically.
What documents should you gather right now if you're preparing to file?
Before you file a single thing, spend a week pulling every scrap of evidence you can find. This checklist runs roughly from strongest to weakest.
Highest priority:
- Joint federal tax returns for every year you filed as married (pull transcripts from IRS.gov if you lost the originals)
- Any deed, mortgage, or lease with both names as spouses
- Life insurance or retirement beneficiary forms listing the other as "spouse"
- A declaration of informal marriage, if one was filed
Strong supporting evidence:
- Health insurance enrollment records showing the other as a covered spouse
- Bank account opening documents or signature cards listing marital status
- HR and employment records where you listed the other as a spouse
- Wills, trusts, or powers of attorney calling each other spouses
Useful supplemental evidence:
- Photos from family events where you were introduced as spouses
- Social media screenshots showing how you referred to each other over time
- Cards, letters, or emails using "wife" or "husband" language
- Names of friends, family, or neighbors willing to testify
- Hospital or medical records listing the other as a spouse or emergency contact
- A personal affidavit describing when and how you agreed to be married
Organize everything by date. Courts like a clean timeline that shows when the agreement formed and how the holding-out stayed consistent after. Gaps in that timeline are exactly what an opposing attorney will pry open.
Couples moving cooperatively can use DivorceClear's document packet, which includes the state-specific petition forms you need once the marriage is established. But the evidence work above happens before you touch a court form.
Are children's rights affected by whether the common law marriage is proved?
No. A child's legal rights sit apart from the marriage question. Child support and custody turn on the parent-child relationship, not on whether the parents were married. Even if the court finds no common law marriage existed, it still decides custody, visitation, and child support for any kids the couple shares [9].
The marriage question can touch children indirectly. If a parent wins alimony because the marriage is proven, that shifts the household's finances. And in a handful of states, the marriage's legitimacy can affect inheritance rights for children born during the relationship, though most modern statutes have erased the old distinction between children born inside and outside marriage.
If you have kids and you're working out support, our child support calculator gives you a rough estimate of what courts in your state tend to order. Actual amounts depend on each parent's income, the custody split, and state guidelines.
For the divorce itself, whether the marriage existed decides what the court can divide (property and debt) and what support it can order between the partners. The children's part of the case runs on a parallel track either way.
Frequently asked questions
How many states still allow common law marriages to form in 2025?
Eight states plus Washington D.C. still allow new common law marriages: Colorado, Iowa, Kansas, Montana, New Hampshire (inheritance only), Oklahoma, Rhode Island, South Carolina, Texas, and Utah. Several other states, including Alabama and Pennsylvania, stopped recognizing new common law marriages after specific cutoff dates but still honor unions formed before those dates.
Can I get a divorce if we never had a wedding or marriage license?
Yes, if you live in a state that recognizes common law marriage and your relationship met the legal requirements. You file for divorce just as any married person would, but you also have to prove the marriage existed, since there's no license on file. When both partners agree the marriage was real and agree on splitting property, the process stays relatively simple.
What is the strongest single piece of evidence of a common law marriage?
Joint federal tax returns filed as 'married filing jointly' are widely considered the strongest single document. Signing a federal return with married status is a formal declaration under penalty of perjury. Courts treat years of joint filing as strong evidence of both mutual intent to be married and public representation of marital status. You can pull transcripts of past returns from IRS.gov using Form 4506-T.
Does living together for 7 years automatically create a common law marriage?
No. This is one of the most widespread myths in American family law. No state creates a common law marriage based on length of cohabitation alone. You need a mutual present-tense agreement to be married AND public representation as a married couple, on top of living together. Seven years of cohabitation with no agreement and no holding-out equals no marriage in any U.S. state.
What if my partner denies we were ever common law married?
You'll face a contested evidentiary hearing before the divorce can proceed. The court examines all available evidence: tax returns, financial records, witness testimony, social media. Joint tax returns filed as married, employer benefits forms listing the other as a spouse, and testimony from people who knew you as a married couple are the most persuasive. Seriously consider hiring a family law attorney for a contested proceeding.
Can I prove a common law marriage with social media posts?
Yes, courts have accepted social media evidence in common law marriage cases. Posts calling the other person 'my husband' or 'my wife,' anniversary posts, or a relationship status showing 'married' all support the holding-out element. Preserve screenshots with timestamps and URLs intact. Social media works best as backup alongside stronger documents like joint tax returns.
What is a Texas informal marriage declaration and how does it help?
Texas Family Code § 2.402 lets couples file a Declaration of Informal Marriage with the county clerk. This optional document creates an official record of the marriage's formation date and the parties' identities. If you later divorce or one partner dies, the declaration proves the marriage without relying on circumstantial evidence. Fees are usually under $50, and it's one of the simplest protective steps a common law couple can take.
Does a common law marriage from another state count if I moved away?
Yes. Under the Full Faith and Credit Clause of the U.S. Constitution, states must recognize marriages validly formed in other states. Form a common law marriage in Texas, move to California, and California must recognize it for divorce purposes. The state where you file applies the law of the state where the marriage formed to decide whether it was valid.
How long does a common law marriage divorce take?
In an uncontested case where both parties agree the marriage existed, the timeline matches any uncontested divorce in your state, typically 60 to 180 days depending on state waiting periods and court backlogs. A contested case where one party denies the marriage can take one to three years. Even in cooperative cases, evidence gathering can add several weeks before you file.
What happens to property if the court decides we were never common law married?
If the court finds no marriage existed, you lose access to equitable distribution and spousal support. Assets held in one person's name stay with that person. Jointly titled property gets split under normal property law, not divorce law. This can be brutal for a lower-earning partner who poured money into a home or business without their name on the title. That's a core reason to build strong evidence before filing.
Do I need a lawyer to prove a common law marriage?
Not always. If both partners agree the marriage existed and agree on dividing everything, you can handle an uncontested divorce yourself in most states using court forms or a document service. If your partner disputes the marriage, or there's significant property at stake, a family law attorney is worth the cost. Contested common law hearings involve evidence rules and legal argument that are genuinely hard to handle alone.
How does the court decide when the common law marriage started?
Courts look for the earliest date they can confirm all three elements: capacity, mutual agreement, and holding out. The date on the first joint tax return, the lease or mortgage with both names, or the date a declaration of informal marriage was filed are common starting points. The formation date matters for property division because assets acquired before it are generally separate property.
Are children from a common law marriage treated differently in divorce?
No. Children's rights to support and custody rest on the parent-child relationship, not on whether the parents were legally married. Even if a court finds no common law marriage existed, it still decides custody, visitation, and child support. The marriage determination affects property division and spousal support between the adults, not the obligations parents owe their children.
What if we were common law married in a state that no longer recognizes them?
If your marriage formed before the cutoff date in a state like Alabama (Jan. 1, 2017), Georgia (Jan. 1, 1997), or Pennsylvania (Jan. 24, 2005), it's still valid. You prove it the same way: evidence of capacity, mutual agreement, and holding out as of the formation date. You'll need to establish the marriage formed before the cutoff, which makes documents from that period especially important.
Sources
- Colorado General Assembly, C.R.S. § 14-2-109.5 (Informal marriages): Colorado still recognizes new common law marriages under C.R.S. § 14-2-109.5
- National Conference of State Legislatures, Common Law Marriage by State: List of states that recognize common law marriages and their cutoff dates for new formation
- U.S. Constitution, Article IV, Section 1 (Full Faith and Credit Clause): States must give full faith and credit to valid marriages formed in other states
- Texas Legislature, Texas Family Code § 2.401 (Proof of Informal Marriage): Texas Family Code § 2.401 defines the elements of an informal marriage and states a rebuttable presumption against common law marriage if suit is not filed within two years of separation
- American Bar Association, Family Law Section, Common Law Marriage Overview: Courts infer mutual intent to be married from conduct; social media posts have been used as evidence of holding out in Texas and Colorado proceedings
- Internal Revenue Service, Publication 501, Filing Status Definitions: The IRS requires actual married status to file as married filing jointly or married filing separately; courts treat joint filing as evidence of mutual intent
- National Center for State Courts, Court Statistics Project, Civil Filing Fees by State: State court divorce filing fees range from roughly $75 to $435 across U.S. states
- Cornell Law School Legal Information Institute, Equitable Distribution: Most states use equitable distribution rather than community property for divorce; nine states use community property rules
- U.S. Department of Health and Human Services, Office of Child Support Services: Child support and custody rights are based on the parent-child relationship, not on whether the parents were legally married
- Texas Legislature, Texas Family Code § 2.402 (Declaration and Registration of Informal Marriage): Texas allows couples to file a Declaration of Informal Marriage with the county clerk to create an official record of a common law marriage
- Iowa Legislature, Iowa Code § 595.1A (Common law marriage): Iowa recognizes common law marriages under Iowa Code § 595.1A
- Utah Legislature, Utah Code § 30-1-4.5 (Judicial recognition of marriage not solemnized): Utah requires a court to validate a common law marriage and has a cohabitation requirement under Utah Code § 30-1-4.5