What Is Common Law Marriage
A common law marriage is a legally recognized marriage created by cohabitation and mutual consent, without a formal ceremony or marriage license. The couple must live together, present themselves publicly as married, and intend to be married. Once established, a common law marriage has the same legal status as a ceremonial marriage for purposes of divorce, property division, and spousal support.
Which States Recognize Common Law Marriage
Only 15 states and the District of Columbia currently recognize common law marriages formed after a specific date. These include Colorado, Florida (limited circumstances), Georgia (if established before January 1, 1997), Idaho (if established before January 1, 1996), Iowa, Kansas, Montana, New Hampshire, Ohio, Pennsylvania, Rhode Island, South Carolina, Texas, Utah, and Wyoming. If you established a common law marriage in a recognizing state, that marriage is valid nationwide for divorce purposes, even if you now live in a state that does not recognize common law marriages.
Requirements for Establishing Common Law Marriage
The three core requirements vary slightly by state, but generally include:
- Cohabitation: Living together as spouses for a specific period. Texas requires no minimum time if other requirements are met. Colorado requires approximately one year. Other states have different thresholds or no fixed requirement if mutual intent is clear.
- Mutual intent to be married: Both parties must agree to be husband and wife. This is demonstrated through conduct, statements, or declarations, not merely through living together.
- Public acknowledgment: The couple must hold themselves out as married to the community, such as filing joint tax returns, using the same surname, or introducing each other as spouse.
Divorce, Property Division, and Custody
Dissolving a common law marriage requires formal divorce proceedings just like a ceremonial marriage. You must file a petition for dissolution of marriage in the state where you meet residency requirements, typically six months of residence. Property division follows equitable distribution rules in most states, meaning assets and debts acquired during the marriage are divided fairly, though not necessarily equally. Separate property owned before the marriage or received by gift or inheritance remains with the owner.
If children are involved, custody and child support are determined separately from spousal support. Courts apply the "best interests of the child" standard. Spousal support eligibility depends on factors like the length of the marriage, each party's earning capacity, and their contributions to the household. A common law marriage of 10 years or longer may qualify for indefinite alimony in some states.
Proving a Common Law Marriage in Divorce
If your spouse disputes that a common law marriage existed, you will need evidence. Documentation that strengthens your case includes joint tax returns, joint bank accounts, joint leases or mortgage documents, insurance policies listing you as spouse, and testimony from witnesses who knew you as a married couple. Without a marriage certificate, this evidence becomes crucial to establishing your legal status and access to marital property and support.
Common Questions
- Can I get a divorce if I only had a common law marriage? Yes. You must file a formal petition for dissolution of marriage through the court system in a state that recognizes your marriage. If you established the common law marriage in a recognizing state, you have legal standing to divorce even if you now live elsewhere.
- Does common law marriage give me access to spousal support? Yes, if the court determines a valid common law marriage existed. Spousal support is based on the length of the relationship, earning capacity, and other factors. The longer the marriage, the more likely indefinite support is awarded.
- What happens to property if we separate without divorcing? Without a formal divorce, property division does not occur automatically. You may have claims to marital property, but without court intervention, disputes are difficult to resolve. Filing for dissolution ensures legal protection of your interests.