Last updated 2026-07-11
TL;DR
A common law marriage is a legally recognized marriage formed without a license or ceremony. It takes cohabitation plus a mutual agreement to be married plus holding yourselves out publicly as a couple. Only eight states plus D.C. still allow new ones. To end one, you file a formal divorce, exactly like any licensed marriage. There is no common law divorce.
What is a common law marriage, exactly?
A common law marriage is a marriage that forms through how two people live rather than through a license and a ceremony. The couple lives together, agrees between themselves that they are married, and presents themselves to the world as a married couple. If state law treats those facts as enough, the relationship becomes a full legal marriage with every right and obligation a licensed one carries.
That last part surprises most people. There is no halfway version. A valid common law marriage gives each spouse the right to inherit, file joint taxes, claim spousal benefits from Social Security and pensions, and make medical decisions for the other. It also creates full financial entanglement: debt, property, and divorce.
The phrase comes from English common law, which recognized marriage by mutual agreement long before state licensing existed. American states inherited that tradition, then most abolished it. Some did so a century ago. Others did so recently. Iowa abolished new common law marriages for relationships starting after July 1, 2020. The list keeps shrinking.
Here is what a common law marriage is not: a relationship that turns into a marriage after seven years of living together, or after any fixed number of years. That is one of the most stubborn myths in American family law. No state has ever had a cohabitation clock. The seven-year rule does not exist anywhere in U.S. law, according to the Cornell Law School Legal Information Institute.
Which states recognize common law marriage in 2025?
As of 2025, only eight states plus the District of Columbia still let couples create a new common law marriage: Colorado, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas, and Utah. New Hampshire recognizes common law marriage for inheritance purposes only, not as a full marriage during both spouses' lives. That is the whole current list.
| State | Notes |
|---|---|
| Colorado | Recognized through judge-made law, no statute |
| Kansas | Recognized by statute |
| Montana | Recognized |
| Oklahoma | Recognized by statute |
| Rhode Island | Recognized through judge-made law |
| South Carolina | Recognized through case law |
| Texas | Recognized; can be registered with the county clerk |
| Utah | Recognized; must be established by court order |
| Washington D.C. | Recognized |
| New Hampshire | Inheritance purposes only |
States that abolished common law marriage often still honor ones formed before the cutoff date. Pennsylvania abolished new common law marriages after January 1, 2005, but a couple who met the requirements before that date stays legally married. The same rule applies in Alabama (abolished January 1, 2017), Georgia (abolished January 1, 1997), and Iowa (abolished July 1, 2020).
If you formed your relationship in a state that used to allow common law marriages, and you met the requirements at the time, you may still be legally married even though that state closed the door years later.
The Full Faith and Credit Clause of the U.S. Constitution (Article IV, Section 1) means a common law marriage validly formed in Texas is generally recognized when the couple moves to California, even though California doesn't allow new ones to form. Courts in the new state ask one question: was this marriage valid where it was created? If yes, they honor it.
What are the legal requirements to have a valid common law marriage?
Requirements vary by state, but the states that recognize common law marriage look for the same three core elements.
Both people must have the capacity to marry. That means legal age (18 in most states, though some allow younger with parental consent), neither is already married to someone else, and neither is so mentally impaired that they can't understand what marriage means.
The couple must mutually agree to be married. This is more than acting like a couple. It's a present-tense agreement: we are married right now, not we plan to marry someday. Courts look for proof of that agreement in joint tax returns filed as married, leases listing both as spouses, insurance forms naming one as the other's spouse, written declarations, or sworn testimony.
The couple must live together and hold themselves out publicly as married. Holding out means introducing each other as husband and wife or spouse, using the same last name, telling family and friends you are married. No state statute sets a required number of years for cohabitation. Courts weigh the whole relationship.
Texas adds a practical shortcut. A couple can sign a Declaration of Informal Marriage at the county clerk's office, which creates a written record. Colorado moved in a different direction. Since the Colorado Supreme Court decision in Hogsett v. Neale (2021), courts there look at the "totality of the circumstances" and stepped away from a strict holding-out requirement in favor of mutual agreement plus cohabitation.
Proving a common law marriage exists, especially when one partner denies it, often lands in court. That's where the money goes.
Is a common law marriage as legally binding as a licensed marriage?
Yes. If your state recognizes it and you meet the requirements, a common law marriage carries the same legal weight as one with a license and a ceremony. Same property rights, same inheritance rights, same claim to Social Security survivor benefits, same right to make medical decisions in an emergency, same tax filing options.
The Social Security Administration recognizes common law marriages for survivor and spousal benefits if the marriage was valid in the state where it formed. The IRS lets couples in valid common law marriages file joint federal returns.
The obligations match the rights. Spousal support, division of marital property, and responsibility for marital debts all apply. If you bought a house together while holding yourselves out as married in a recognizing state, that house may be marital property subject to division in a divorce.
The person claiming the marriage carries the burden of proving it. Many states have applied a "clear and convincing evidence" standard, which is higher than the "preponderance of the evidence" standard used in most civil cases. Some states have shifted to preponderance. Either way, a disputed common law marriage case can turn into long, expensive litigation.
Do you need a formal divorce to end a common law marriage?
Yes. This is the part that catches people off guard. There is no such thing as a common law divorce. If your common law marriage is legally valid, you can't just stop living together and declare yourselves unmarried. You go through the same court-supervised divorce process that licensed couples use.
That means filing a divorce petition, serving your spouse, reaching a settlement or going to trial on property and support, and getting a court-signed decree. Until that decree exists, you are married. Remarry without it and you may be committing bigamy.
Here is the practical trap. Many couples the law would call married don't know it. They split up, move on, and one of them later tries to remarry. If a court then finds the first relationship was a valid common law marriage, the second marriage is void.
If there's any doubt about whether your relationship legally qualifies, and you're in a recognizing state, get clarity before you move on. A family law attorney can give you an opinion. For couples who agree they were married and agree on how to split things, an uncontested divorce is usually straightforward. You file the same paperwork any divorcing couple files.
On the divorce papers side, the forms don't change because the marriage was informal. Courts want the same petitions, disclosures, and proposed orders that any divorce requires.
How do you file for divorce from a common law marriage?
The filing process is identical to any other divorce in your state. Here's what it looks like step by step.
Step one: establish that your common law marriage is valid. If you both agree you were married, this is easy. You'll state in the petition when and where the marriage formed and that it was a common law marriage. If your partner disputes it ever existed, you have to prove the marriage before you can divide anything. That's a separate fight.
Step two: meet residency requirements. Most states require at least one spouse to have lived in the state for a set period before filing. Texas requires six months in the state and 90 days in the county. Colorado requires 91 days. South Carolina requires one year if both spouses live there, or one year for the filing spouse if the other spouse is out of state.
Step three: file your divorce petition. You file with the district or family court in your county, pay the filing fee (typically $100 to $400 depending on state and county), and serve your spouse.
Step four: handle property, debt, support, and custody. The rules that apply to licensed marriages apply here. Marital property gets divided. If you have children together, custody and child support get set. A child support calculator helps you see what support might look like in your state.
Step five: finalize. If everything is agreed, many states let an uncontested divorce close in a hearing that runs under 15 minutes. Texas imposes a minimum 60-day waiting period from the filing date before a divorce can be granted. Colorado imposes a minimum of 91 days.
One honest note on document prep. Services like DivorceClear offer a complete uncontested divorce document packet for $149, which works for any legally recognized marriage including common law ones, as long as the divorce is truly uncontested. If the other spouse disputes that a marriage existed at all, that's contested, and you'll want a divorce attorney.
How do you prove a common law marriage for divorce purposes?
Proof matters most when one spouse says "we were never legally married" and the other says "yes we were." Courts weigh documents and testimony to decide whether the couple actually agreed they were married and held themselves out that way.
The strongest evidence is joint tax returns filed as married filing jointly or married filing separately, because both parties signed those under penalty of perjury. Lease or mortgage documents listing both as spouses carry real weight. So do insurance policies naming the other as a spouse, joint bank accounts, wills leaving everything to "my spouse," birth certificates listing both parents with the same last name, and letters where one refers to the other as husband or wife.
Weaker but still useful: social media posts calling each other spouses, testimony from friends and family who understood you to be married, holiday cards signed as a married couple, or one person using the other's last name.
Evidence that hurts a claim: separate finances with no commingling, separate addresses, each person filing taxes as single, telling people "we're not married, just together."
If you're trying to prove the marriage to claim support or property, pull together everything on the strong list before you file. If you're the spouse arguing no marriage existed, that same list works in reverse.
Texas sets a real trap here. If no proceeding is filed within two years after the couple separates, the law presumes no informal marriage existed. Delay filing in Texas and you may undercut your own claim before you start.
What happens to property and debt in a common law marriage divorce?
Property and debt division follows the same rules as any other marriage in your state. The line that matters is community property versus equitable distribution.
Texas is a community property state. Property acquired during the marriage belongs equally to both spouses, no matter whose name is on the title. Each spouse owns half. Debt taken on during the marriage is generally a joint obligation.
Colorado, South Carolina, Kansas, Montana, Oklahoma, and Rhode Island use equitable distribution. Property gets divided fairly, which is not always 50/50. Courts look at how long the marriage lasted, each spouse's economic circumstances, and what each contributed.
The hard part with common law marriages is figuring out when the marriage started. That date sets the line between separate property (owned before the marriage) and marital property (acquired during it). Buy a house before you and your partner mutually agreed you were married, and it may be your separate property. Buy it after, and it's likely marital. Pinning down the exact start date is often the most fought-over issue in the whole case.
Alimony works the same way. If you were in a long common law marriage and your spouse earned far more than you, you may have a support claim. State laws governing alimony apply without modification.
What if you move to a different state, does your common law marriage still count?
Generally yes, with caveats. The Full Faith and Credit Clause means states generally must recognize marriages validly formed elsewhere. Form a valid common law marriage in Colorado, move to Florida, and Florida courts should recognize your marriage even though Florida doesn't allow new ones to form.
Where it gets messy: some states have historically resisted recognizing marriages that clash with their own strong public policy. Before the Supreme Court's 2015 Obergefell decision, some states refused to recognize same-sex marriages from other states on that ground. The same argument for common law marriages has rarely worked, but it has come up.
The more common headache is evidence. You formed a common law marriage in Texas. You moved to California. You split up. You file for divorce in California. The California court has to decide whether you had a valid Texas common law marriage, and it applies Texas law to that question. All your evidence sits in your Texas life, and the California court may be less familiar with Texas informal marriage standards. It's workable, but expect more friction than a licensed marriage divorce.
If you're unsure whether your relationship is a valid common law marriage in the state where it formed, don't count on your current state's court to sort it out cleanly. An opinion from a family law attorney licensed where the relationship formed gives you a far cleaner answer.
For a wider view of how marriage and divorce patterns intersect with these structures, see our piece on divorce rate in America.
What are the most common mistakes people make with common law marriages?
The biggest mistake is assuming that living together creates a marriage. It doesn't. You can share a home for 20 years and have no legal marriage if your state doesn't recognize common law marriage, or if you never mutually agreed and held yourselves out as married. Plenty of people in long relationships are stunned to learn they have no spousal rights when the relationship ends or a partner dies.
The second mistake is the opposite: assuming that skipping the license means you were never married, then skipping the divorce. If you meet your state's requirements, you are legally married regardless of paperwork. Skip the divorce and you stay married.
Waiting too long causes its own trouble. In Texas, waiting more than two years after separation to file can trigger the presumption that no marriage existed. That cuts off your property and support claims.
A related mistake is failing to document the relationship while it's happening. If you're in a committed long-term relationship in a recognizing state, keep records of how you presented yourselves (joint accounts, insurance policies, tax returns filed as married). Those records protect you if things go sideways.
The last mistake is thinking you can ignore a disputed divorce. Courts can and do decide whether a marriage existed, and those findings bind both parties. Ignoring a divorce petition from a partner claiming common law marriage does not make the case disappear.
How much does it cost to divorce from a common law marriage?
The range is wide, and it turns almost entirely on whether the divorce is contested.
When both parties agree they were married and agree on all terms, an uncontested common law marriage divorce costs about the same as any uncontested divorce:
| Cost item | Typical range |
|---|---|
| Court filing fee | $100 to $400 |
| Service of process | $50 to $150 |
| Document prep service | $150 to $500 |
| Attorney review (optional) | $200 to $500 |
| Total uncontested | $300 to $1,100 |
Contested cases climb fast. When one spouse disputes the marriage ever existed, or property division turns into a fight, attorney fees for a contested divorce run $15,000 to $30,000 per spouse based on Martindale-Nolo's 2023 divorce cost survey. Disputed marriage validity adds litigation steps before you even reach the divorce itself.
Filing fees are set by county. In Travis County, Texas the basic divorce filing fee is around $300. In Denver, Colorado it runs about $230. In Charleston, South Carolina it runs around $150. Check your specific county court's fee schedule, because these numbers move.
For couples who agree they were married and agree on terms, document prep works exactly like any uncontested divorce. DivorceClear's $149 packet covers it, and you handle the filing yourself. That keeps total out-of-pocket costs in the $250 to $550 range depending on your county's fees.
With children involved, budget extra time and possibly a mediator's fee (typically $100 to $300 per hour, most sessions running 2 to 4 hours) to work out a parenting plan.
Can you get Social Security or other federal benefits from a common law marriage?
Yes. The Social Security Administration recognizes common law marriages for spousal and survivor benefits if the marriage was valid in the state where it formed. SSA's own guidance is that it will recognize a common law marriage when the laws of the state where it was established would recognize it.
To claim benefits based on a common law marriage, you'll need evidence. SSA typically wants a statement from both spouses (or from the surviving spouse plus a blood relative of the deceased), along with documents like joint tax returns, insurance records, or bank account records.
Federal employee benefits follow a similar rule. The Office of Personnel Management recognizes common law marriages that are valid under state law for Federal Employees Health Benefits.
For pension and retirement accounts, ERISA (the federal law governing employer retirement plans) defers to state law on what counts as a valid marriage. A valid common law marriage should entitle you to survivor benefits and requires a court-approved order (a Qualified Domestic Relations Order, or QDRO) to split the account in divorce.
One more thing on taxes, and it cuts both ways. If you were in a valid common law marriage and filed as single during it, you may have filed incorrectly. The IRS follows state law on whether a marriage exists. Fixing past returns is possible but complicated, and you'd want a tax professional's help.
Frequently asked questions
Does living together for 7 years automatically create a common law marriage?
No. This is one of the most persistent myths in U.S. family law. No state has a cohabitation time limit that automatically creates a marriage. A common law marriage requires mutual agreement to be married and holding yourselves out publicly as a couple, on top of living together. Duration of cohabitation is just one factor courts consider when they weigh those requirements.
How do I know if my state recognizes common law marriage?
As of 2025, the states that allow new common law marriages to form are Colorado, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas, Utah, and Washington D.C. New Hampshire recognizes it for inheritance purposes only. Several states honor common law marriages formed before a specific abolition date. Your state court's self-help center or your state's statute index is the most reliable source for current rules.
Is a common law marriage divorce the same process as a regular divorce?
Yes, with one possible extra step. If your spouse disputes that a common law marriage ever existed, the court must first decide whether a valid marriage formed before it can move to the divorce itself. If you both agree you were married, the process is identical to any other divorce: filing a petition, serving the other spouse, resolving property and support, and getting a court decree.
What documents do I need to prove a common law marriage?
The strongest documents are joint federal tax returns filed as married, lease or mortgage documents listing both as spouses, insurance policies naming the other as a spouse, and joint bank account records. Wills, birth certificates, and written correspondence where one calls the other a husband or wife also help. Courts look for proof that both parties agreed they were married and consistently presented themselves that way.
Can I get alimony from a common law marriage?
Yes. If your state recognized your common law marriage as valid, you have the same right to seek spousal support as anyone divorcing from a licensed marriage. Courts apply the same factors: length of the marriage, each spouse's income and earning capacity, standard of living, and contributions to the marriage. The fact that the marriage was informal does not reduce your support rights.
What if my partner denies we were ever common law married?
You'll need to prove the marriage existed in court before the divorce can proceed. Gather documentary evidence: joint tax returns, shared insurance, leases listing you as spouses, social media posts, and witness testimony. This is litigation, not a simple filing. You almost certainly need a family law attorney for a disputed marriage validity case. Expect higher costs and a longer timeline.
How long does it take to divorce from a common law marriage?
If the divorce is uncontested and you both agree you were married, the timeline matches any uncontested divorce. Texas has a mandatory 60-day waiting period from filing to finalization. Colorado requires 91 days. Most uncontested divorces in recognizing states finalize in 2 to 6 months. Contested cases, especially those where marriage validity is disputed, can take 1 to 3 years.
Does a common law marriage end automatically when you separate?
No. Separation alone does not end a common law marriage, just as it doesn't end a licensed one. You must get a formal divorce decree from a court. Texas has a specific trap: wait more than two years after separation to file for divorce, and a legal presumption arises that no informal marriage ever existed. That can cut off property and support claims, so acting quickly matters.
If we formed a common law marriage in Texas but now live in California, where do we file for divorce?
You file in the state where you currently live, as long as you meet that state's residency requirements. California requires six months of state residency and three months in the county before filing. California courts will recognize your Texas common law marriage under the Full Faith and Credit Clause and apply California divorce law to property and support. The process follows California rules, not Texas rules.
Can a same-sex couple have a common law marriage?
Yes. After the Supreme Court's 2015 Obergefell v. Hodges decision, which established a constitutional right to same-sex marriage, states cannot limit common law marriage recognition to opposite-sex couples. A same-sex couple that meets all the requirements in a recognizing state has the same rights as any other couple.
Do I need a lawyer for a common law marriage divorce?
If you both agree the marriage existed and agree on how to divide property, support, and custody, you can file an uncontested divorce yourself using court forms or a document prep service. If your spouse disputes the marriage, if you have significant assets to divide, or if custody is complex, hiring a divorce attorney is worth the cost. Disputed common law marriage cases are especially complex and almost always need counsel.
What is a declaration of informal marriage and do I need one?
Texas offers an optional Declaration of Informal Marriage that couples can sign at the county clerk's office. It's not required for a valid common law marriage, but it creates a clear written record that makes proving the marriage far easier later, for benefits, divorce, or inheritance. If you're in a Texas informal marriage and want certainty, filing the declaration is a smart step. Other states don't offer an equivalent.
Can I inherit from a common law spouse who dies without a will?
Yes, if you were in a valid common law marriage recognized by your state, you have the same intestate inheritance rights as a licensed spouse. The challenge is proving the marriage after your spouse has died, when the best witness to the mutual agreement is gone. That's why documentary evidence matters so much during the relationship. Without it, you may have to litigate your right to inherit against other family members.
Sources
- Iowa Legislature, Iowa Code Section 595.1A (2020 amendment abolishing common law marriage): Iowa abolished new common law marriages for relationships beginning after July 1, 2020
- Cornell Law School Legal Information Institute, Common Law Marriage overview: No state has a cohabitation time limit creating marriage automatically; valid common law marriages require formal divorce to dissolve
- U.S. Constitution, Article IV, Section 1 (Full Faith and Credit Clause): States generally must recognize marriages validly formed in other states under the Full Faith and Credit Clause
- Texas Family Code, Chapter 2, Subchapter E (Informal Marriage), Sections 2.401-2.402: Texas requires six months state residency and 90 days county residency to file for divorce; 60-day waiting period applies; two-year separation presumption applies to informal marriages; Declaration of Informal Marriage may be filed with county clerk
- Colorado Revised Statutes Section 14-10-106 and Colorado Supreme Court, Hogsett v. Neale (2021): Colorado requires 91 days residency before filing for divorce; the Colorado Supreme Court in Hogsett v. Neale (2021) shifted common law marriage analysis to totality of circumstances with mutual agreement and cohabitation as primary factors
- Social Security Administration, Program Operations Manual System (POMS), GN 00305.065, Common Law Marriages: SSA recognizes common law marriages for spousal and survivor benefits if the marriage was valid in the state where it was formed
- Texas Family Code, Chapter 3, Marital Property Rights and Liabilities: Texas is a community property state; property and debt acquired during marriage belongs equally to both spouses
- Martindale-Nolo Research, 2023 Divorce Cost Survey: Average attorney fees for a contested divorce are $15,000 to $30,000 per spouse based on 2023 survey data
- U.S. Department of Labor, Employee Benefits Security Administration, QDROs: The Division of Retirement Benefits Through Qualified Domestic Relations Orders: ERISA retirement accounts require a court-approved Qualified Domestic Relations Order (QDRO) to divide in divorce; ERISA defers to state law on what constitutes a valid marriage
- South Carolina Code of Laws, Title 20, Chapter 1, Marriage (common law marriage recognized by case law): South Carolina recognizes common law marriage through judge-made law; residency requirement is one year for filing spouse if other spouse is out of state
- Internal Revenue Service, Tax Topics: Filing Status: The IRS follows state law on whether a common law marriage exists; couples in valid common law marriages may file as married filing jointly or married filing separately