What states recognize common law marriage for divorce purposes

Last updated 2026-07-11

Which states still recognize common law marriage today?

Eight states plus Washington D.C. let you form a new common law marriage as of 2025: Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas, and Utah. ^[1] New Hampshire is the odd one out. It recognizes common law marriage only for inheritance after one partner dies, not for divorce. ^[2]

That list is shorter than most people expect. Most states got rid of common law marriage during the 20th century, usually because the missing paperwork turned property and inheritance into a fight.

Here's the part people miss. If your relationship started in one of these states and you met that state's requirements, you are legally married. Full stop. You can't end it by moving out or signing some informal note. You need a divorce, the same one the courthouse hands out to couples who had a license and a ceremony.

What states used to allow common law marriage but no longer do?

A bigger group of states abolished common law marriage but still honor the ones formed before their repeal date. This matters more than it sounds. If you and your partner lived as a couple in one of these states before the cutoff, your relationship may still count as a common law marriage, even if you've since moved away or the state changed its law. ^[3]

Here are the repeal dates for the larger former-recognition states:

State	Recognized new common law marriages until...
Alabama	January 1, 2017
Florida	January 1, 1968
Georgia	January 1, 1997
Idaho	January 1, 1996
Ohio	October 10, 1991
Pennsylvania	January 2, 2005
Indiana	January 1, 1958

Live together in Pennsylvania before January 2, 2005 and meet that state's requirements, and Pennsylvania courts still treat you as married. After that date, no new ones formed there. ^[4]

The question that decides everything: was the marriage established before the repeal? Both elements, intent and cohabitation, had to be in place. That's a factual question, and a family law attorney can help you sort it out if anyone disputes it.

What are the legal requirements to have a valid common law marriage?

Requirements vary by state, but three elements show up almost everywhere. Both parties need the legal capacity to marry, meaning they're adults and not already married to someone else. They need to mutually agree, or "consent," to be married, which is more than agreeing to live together. And they need to cohabit and hold themselves out to the public as married. ^[1]

The third element is where the fights happen. "Holding out" can mean filing joint tax returns as married, introducing each other as husband and wife, sharing a last name, or listing each other as spouse on insurance or beneficiary forms. The more of these you can document, the stronger the claim.

Texas gives couples a specific option. They can sign a "Declaration of Informal Marriage" with the county clerk, which creates a paper record. ^[5] Most states have no such form. Utah uses a court petition to get a legal finding that a valid marriage exists.

No state sets a nationwide minimum time you have to live together. Texas requires that the couple cohabited in Texas but sets no minimum. Colorado courts look at the whole relationship. If you're trying to prove or disprove a common law marriage, evidence of intent and public representation counts for far more than a tally of months.

Does every state have to recognize a common law marriage from another state?

Generally, yes. The Full Faith and Credit Clause of the U.S. Constitution (Article IV, Section 1) requires states to give legal effect to the public acts and judicial proceedings of other states. ^[6] Valid marriages are included.

Form a valid common law marriage in Texas, then move to California, which allows no new common law marriages, and California courts will treat your Texas marriage as valid for divorce, property division, and spousal support. You'd file for divorce in California exactly the way a licensed couple does.

The wrinkle is proof. California won't know your relationship qualifies as a Texas common law marriage. You have to show the court you met Texas's requirements while you lived there: joint tax returns, insurance records, declarations, affidavits from people who knew you as a married couple.

A few states have limited exceptions. States with a strong public policy against a specific type of marriage (such as same-sex marriage before the Supreme Court's Obergefell decision in 2015) have tried to refuse recognition, though those cases have mostly resolved. For a common law marriage formed in a recognition state, interstate recognition is dependable.

How do you get a divorce from a common law marriage?

The same way you divorce a licensed marriage. You file a petition for dissolution of marriage with the family court in your state, serve your spouse, work through property division and support, and get a court decree. ^[7]

The one extra step is proving the marriage existed, and only if your spouse disputes it. That's where a common law divorce gets expensive. A contested "did we even have a marriage" fight can run up real legal fees before you touch a single asset.

If both people agree the marriage existed and agree on how to split things, an uncontested divorce works fine. Colorado, Texas, and the other recognition states all have uncontested procedures. You fill out the same petition forms as anyone else. For an uncontested common law divorce, you use the same divorce papers as any other couple in your state.

Here's the trap. If your partner denies the marriage ever existed, you can't just walk away. Courts have held that a person can't unilaterally "opt out" of a common law marriage. It exists or it doesn't based on the facts at the time, and a judge has to make that call. Silence is not agreement.

What property rights do common law spouses have in a divorce?

The same rights as licensed spouses. Once a common law marriage is legally valid, the law treats it exactly like a ceremonial marriage for property division, spousal support, and inheritance. ^[1]

In community property states that recognize common law marriage, Texas being the main one, assets and debts acquired during the marriage generally split 50/50. ^[5] In equitable distribution states like Colorado, the court divides marital property fairly, which doesn't always mean evenly.

A valid common law spouse can also claim alimony, called spousal maintenance in some states. Length of the marriage drives these numbers, and with a common law marriage the start date is often disputed. That dispute changes how much support gets awarded and for how long.

Employer benefits catch people off guard. Many health and pension plans want a marriage certificate. If you have a common law marriage and your plan demands documentation, you may need a court order or affidavit before coverage kicks in. After divorce, COBRA and QDRO rights apply just as they would for a licensed marriage.

How do you prove a common law marriage in court?

Courts weigh a body of evidence, not one document. The useful pieces:

• Joint federal and state tax returns filed as "married filing jointly" or "married filing separately" (not single)
• Mortgage or lease agreements listing both as spouses
• Health, life, or auto insurance with the other listed as spouse or beneficiary
• Employer records showing the partner as spouse for benefits
• Wills or estate documents that refer to each other as spouse
• A Texas Declaration of Informal Marriage, if filed ^[5]
• Affidavits from friends, family, or coworkers who knew you as married
• Social media or letters where you called each other husband or wife

The tax return usually carries the most weight, because it's a federal document signed under penalty of perjury. File jointly for years, and that's strong evidence of mutual intent to be married.

When the marriage is disputed, the party claiming it exists carries the burden of proof. Texas adds a rebuttable presumption: if a couple separated and two years passed without either one filing a proceeding to prove the marriage, the law presumes no common law marriage existed. ^[5] That's a reason not to sit on it.

For the spouse who says no marriage existed, the counter-evidence is the absence of everything above, plus proof that one or both parties consistently held out as single: individual tax returns, separate leases, and the like.

What happens to children from a common law marriage when the couple separates?

Children's rights sit entirely apart from marriage status. Biological children of both parties have the same rights whether their parents were formally married, common law married, or never in any recognized relationship. Custody, visitation, and child support turn on the child's best interests, period. ^[7]

If you're ending a common law marriage with kids, you handle custody and child support the way any divorcing couple does. Your state's child support worksheet and custody standards apply the same.

Marriage status can touch children indirectly through inheritance. If a common law marriage is disputed and a court finds it wasn't valid, property rights between the adults shift. But children's inheritance rights from a biological parent generally don't hinge on whether the marriage was valid.

One more thing. If you're ending what you believe was a common law marriage and you have children, get the divorce decree. Don't assume that because it was informal going in, it can be informal going out. A court order for custody and support protects the kids and protects both parents.

Can a same-sex couple have a common law marriage?

Yes, in states that currently recognize common law marriage. The Supreme Court's ruling in Obergefell v. Hodges (2015) held that same-sex couples have a constitutional right to marry, and lower courts have applied that to common law marriage too. ^[8]

Colorado spelled this out in a 2021 Colorado Supreme Court decision, In re Marriage of Hogsett. The court clarified that the old requirement that couples hold themselves out as "husband and wife" does not apply to same-sex couples. ^[9] The analysis now asks whether the couple mutually agreed to be married and held themselves out as married in whatever terms fit their relationship.

For same-sex couples who were together before Obergefell in a state that now recognizes common law marriage, courts may look at the whole relationship when deciding when the marriage began, since those couples couldn't legally marry earlier even if they wanted to. Colorado courts have addressed this head-on.

How much does it cost to divorce a common law marriage?

For an uncontested common law divorce where both people agree the marriage existed and agree on how to divide property, the cost matches any other uncontested divorce in your state. Court filing fees run from roughly $75 in some counties to around $400 in others. ^[10]

Costs jump when the marriage itself is disputed. If your partner denies you were ever married, you may need a full evidentiary hearing before the divorce can even proceed. Those hearings need attorneys, and attorney fees for contested family law work typically run $250 to $500 an hour or more depending on your market. A contested marriage-existence fight can cost thousands before you've divided a single dollar.

When both people agree on everything, an uncontested divorce is manageable without an attorney in most common-law-marriage states. DivorceClear's $149 document packet covers uncontested divorces in all states and walks you through the state-specific forms. But if there's any real dispute about whether the marriage existed, that's exactly when talking to a divorce attorney before you file is money well spent.

State	Typical court filing fee (dissolution of marriage)
Colorado	$230 (district court)
Texas	$250-$350 (varies by county)
Iowa	$185
Kansas	$195
Montana	$200
Oklahoma	$183
South Carolina	$150
Utah	$325

These are approximate figures from published court schedules, and they vary by county. Check your county clerk's website for the current fee.

What if I didn't know I was in a common law marriage?

This happens more than you'd think. Two people move in together in Texas or Colorado with zero intention of creating a legal marriage, and years later a court finds every element was met. It usually surfaces when one partner wants property rights after a breakup and argues the relationship was a common law marriage.

If you're on the receiving end of that claim and you believe the marriage never existed, you can contest it. You are not automatically married just because you lived with someone in a recognition state. The mutual agreement element is essential. If you both consistently treated yourselves as unmarried, with separate finances, individual tax returns, and never introducing each other as spouses, those facts carry weight.

The uncomfortable truth: file joint tax returns as a married couple, put each other on health insurance as a spouse, and let your friends know you as a couple for ten years, and a court may well find a common law marriage regardless of what you told yourself privately.

So here's the practical move if you're in a long-term relationship in a recognition state and definitely do not want to be legally married. File taxes as single. Keep finances separate. Sign a cohabitation agreement that states plainly you are not married and don't intend to be. Several states' courts have pointed to cohabitation agreements as evidence against a marriage.

Where can I find official self-help resources for common law divorce in my state?

Every recognition state runs a court self-help center or self-represented litigant program. They're free official resources, and they're the safest place to get your forms.

• Colorado: Colorado Judicial Branch Self-Help Center at coloradojudicial.gov ^[11]
• Texas: Texas Law Help at texaslawhelp.org, a nonprofit partnered with Texas courts ^[5]
• Iowa: Iowa Judicial Branch Self-Represented Litigants at iowacourts.gov
• Kansas: Kansas Judicial Council forms at kansasjudicialcouncil.org
• Utah: Utah Courts Self-Help Center at utcourts.gov ^[12]
• South Carolina: South Carolina Judicial Department at sccourts.org
• Oklahoma: Oklahoma Supreme Court Network at oscn.net
• Montana: Montana Courts Self-Help Law Center at courts.mt.gov

For any state not on this list that might recognize your out-of-state common law marriage, the same approach works. Go to that state's official court website, find the family law self-help section, and download the dissolution of marriage packet. The forms won't look any different from a standard divorce.

This article is general information, not legal advice. If your situation involves disputed marriage validity, significant shared property, or a contested custody fight, talk to a licensed family law attorney in your state.

Frequently asked questions

Do you need a divorce to end a common law marriage?

Yes. Every state that recognizes a valid common law marriage requires a formal court divorce to end it. There is no informal way to dissolve a legal marriage, common law or otherwise. You file a petition for dissolution in the family court, go through the same process as any divorce, and receive a court decree. Simply separating or moving out does not end the legal relationship.

How long do you have to live together to have a common law marriage?

No state that recognizes common law marriage sets a minimum cohabitation period. How long you've lived together is one factor courts weigh, but it isn't the deciding one. What matters is evidence that both parties mutually agreed to be married and held themselves out publicly as married. A couple together two years with strong evidence of marital intent can qualify; a couple together twenty years without it may not.

Does California recognize common law marriage?

California does not allow new common law marriages to form. But if you formed a valid common law marriage in a recognition state like Texas or Colorado and then moved to California, California courts treat that marriage as valid and require a standard California divorce to end it. You'd need to present evidence of the out-of-state common law marriage to the California court.

Does Texas recognize common law marriage?

Yes. Texas recognizes informal marriage under Texas Family Code Section 2.401. A couple can establish one by agreeing to be married, living together in Texas, and representing to others that they're married. Texas also offers an optional Declaration of Informal Marriage form that couples can file with the county clerk to create a paper record. A formal divorce is required to end it.

Can a common law spouse get alimony?

Yes. In states that recognize common law marriage, a valid common law spouse has the same right to seek spousal support as a licensed spouse. Courts weigh the same factors: length of the marriage, each spouse's earning capacity, standard of living during the marriage, and contributions made. The start date of the marriage can be disputed in a common law situation, which affects how long the marriage is considered to have lasted.

What happens to a common law marriage if you move to a state that doesn't recognize it?

The marriage stays valid. The Full Faith and Credit Clause of the U.S. Constitution generally requires all states to recognize a valid marriage formed in another state. So a Texas common law marriage remains legal if you move to New York or Florida. If you then want a divorce, you file in your new state of residence once you meet its residency requirement and present evidence that your Texas common law marriage met Texas's legal requirements.

Does Colorado recognize common law marriage?

Yes. The Colorado Supreme Court updated the standard in In re Marriage of Hogsett (2021), holding that courts look at the totality of the relationship and whether both parties mutually intended to be married. The old requirement that couples call each other 'husband' and 'wife' no longer applies, which matters for same-sex couples. Colorado district courts handle common law divorces the same as any other dissolution.

How does property division work in a common law marriage divorce?

Exactly the same as any other divorce in that state. Texas, a community property state, generally splits marital property 50/50. Colorado and most other common law marriage states use equitable distribution, dividing property fairly based on various factors. Property acquired before the marriage, before the date both parties agreed to be married, is generally separate. The start date of the marriage, which can be disputed, affects what counts as marital property.

Is a common law marriage valid if only one person thought they were married?

No. A common law marriage requires mutual consent, so both parties must agree to be married. If one believed they were entering a marriage and the other understood it only as living together, courts generally won't find a valid marriage. That said, courts look at behavior more than stated intentions. If both people acted married in the ways that count legally, a court might find mutual consent existed despite later protests.

What states abolished common law marriage recently?

Alabama is the most recent, abolishing new common law marriages as of January 1, 2017. Pennsylvania ended it effective January 2, 2005. Georgia ended it effective January 1, 1997. Marriages properly formed before those dates are still recognized in those states. Couples who were in qualifying relationships before their state's repeal date should consult a family law attorney, since these pre-cutoff marriages can still require divorce proceedings to dissolve.

Can I file for divorce in a different state than where my common law marriage was formed?

Yes, as long as you meet the residency requirements of the state where you want to file. Most states require 90 to 180 days of residency before you can file. The filing state will recognize your out-of-state common law marriage as long as it was validly formed. You'll likely need to show the court documentation proving the marriage met the requirements of the state where it was formed.

Do I need a lawyer to get a common law marriage divorce?

Not automatically, but it depends on your situation. If both parties agree the marriage existed and agree on how to divide everything, an uncontested divorce is workable without an attorney in most states. If your partner disputes the marriage ever existed, or if there's significant contested property, a family law attorney is a genuinely good investment. A contested hearing on marriage validity alone can get expensive fast.

What is a Declaration of Informal Marriage in Texas?

It's an optional form Texas couples can file with their county clerk to document a common law marriage under Texas Family Code Section 2.402. Filing it creates a clear paper record and removes future doubt about whether the marriage existed. It isn't required for a valid common law marriage in Texas, but it's useful precisely because it eliminates the evidentiary dispute that makes common law divorces complicated. Once filed, a standard divorce is required to dissolve it.

How do I find the divorce forms for a common law marriage in my state?

Go straight to your state's official court website and look for the family law or self-help section. The forms for dissolution of marriage are the same whether your marriage was common law or licensed. Colorado's judicial branch, Texas Law Help, Utah Courts, and similar state court self-help portals all offer free form packets. Your county clerk's office can also tell you exactly which forms to file and the current fee.

Sources

1. Cornell Law School Legal Information Institute, Common Law Marriage overview: Lists states that currently recognize common law marriage and the three general requirements: capacity, mutual agreement, and holding out as married
2. New Hampshire General Court, Revised Statutes Annotated (RSA) Chapter 457, Section 457:39: New Hampshire recognizes common law marriage only for inheritance purposes, not for divorce proceedings
3. National Conference of State Legislatures: State-by-state repeal dates for states that formerly recognized common law marriage, including Alabama (2017), Pennsylvania (2005), and Georgia (1997)
4. Pennsylvania General Assembly, 23 Pa. C.S. Section 1103, Abolition of common law marriage: Pennsylvania abolished new common law marriages effective January 2, 2005 but preserved marriages formed before that date
5. Texas Constitution and Statutes, Texas Family Code Section 2.401: Texas recognizes informal marriage requiring agreement, cohabitation in Texas, and representation to others as married; offers optional Declaration of Informal Marriage; two-year presumption rule for separated couples
6. U.S. National Archives, Constitution of the United States (Article IV, Section 1, Full Faith and Credit Clause): The Full Faith and Credit Clause requires states to recognize the public acts and judicial proceedings of other states, including valid marriages formed in other states
7. Cornell Law School Legal Information Institute, Divorce overview: A divorce (dissolution of marriage) is a court proceeding; child custody and support are decided by the child's best interests independent of marriage status
8. U.S. Supreme Court, Obergefell v. Hodges (2015): The Supreme Court held that same-sex couples have a constitutional right to marry, which lower courts have applied to common law marriage
9. Colorado Judicial Branch, In re Marriage of Hogsett and Neale (2021 CO 1), Colorado Supreme Court: Colorado Supreme Court held in 2021 that common law marriage analysis focuses on mutual intent and totality of the relationship, removing the traditional husband-and-wife holding-out requirement, especially for same-sex couples
10. Colorado Judicial Branch, Self-Help Center filing fee schedule: Court filing fees for dissolution of marriage range from roughly $75 to $400 depending on the state and county
11. Colorado Judicial Branch, Self-Help Center: Colorado provides free self-help resources and dissolution of marriage forms for self-represented litigants
12. Utah State Courts, Self-Help Center: Utah Courts provide free self-help resources and divorce forms; Utah uses a court petition process for common law marriage findings
13. Texas Law Help, Common Law Marriage in Texas: Explains Texas requirements for informal marriage, the Declaration of Informal Marriage process, and how a standard divorce is required to dissolve it