What Is Common Law Marriage and How Do You Get a Common Law Divorce?

Ben Steele  | 

There are a variety of reasons couples might not want to get married in the traditional way. They might object to the religious connotations or to the history of gender power dynamics attached to marriage. They might simply not wish to get involved with the ceremony and expense of marriage.

Unfortunately, there are many misconceptions about common law marriage, and people might not be prepared for the complicated reality of this legal status. If you’re thinking about common law as an alternative to traditional marriage to avoid complicated divorce proceedings, you could well be out of luck. Common law marriages, in the states they’re allowed, often make divorce more complicated because there are no “common law divorce proceedings” — however common law partners are required to go through legal divorce proceedings anyway. Divorce can take a long time under the best of circumstances, but adding the lack of documentation that comes with common law marriage can make the process longer and more frustrating.

What Is Common Law Marriage?

Common law marriage is a concept from medieval England. Church officials weren’t always able to travel to officiate marriages in rural areas, and so people married by “common law” until such time as their union could be officially recognized.

Common law marriage doesn’t require a license of officiate, but it isn’t as simple as cohabiting. In order to be considered married under common law, a couple must both live together and outwardly present themselves as married. This can include “presenting” as married to family, friends, and the community — calling each other husband and wife, and generally acting as if married. It can also include changing of last names and filing joint tax returns.

Many of the legal privileges and protections afforded to married couples either do not apply to, or are difficult to obtain as common law partners, as common law status can take some extra work to document and prove.

Common Law States

Not all states recognize common law marriages. In fact, most of them don’t. The states that recognize common law marriages are:

  • Alabama
  • Colorado
  • District of Columbia
  • Georgia (if created before 1/1/97)
  • Idaho (if created before 1/1/96)
  • Iowa
  • Kansas
  • Montana
  • New Hampshire (for inheritance purposes only)
  • Ohio (if created before 10/10/91)
  • Oklahoma (possibly only if created before 11/1/98. Oklahoma’s laws and court decisions may be in conflict about whether common law marriages formed in that state after 11/1/98 will be recognized.)
  • Pennsylvania (if created before 1/1/05)
  • Rhode Island
  • South Carolina
  • Texas
  • Utah

Some states have specific requirements and limitations on common law marriage. To better understand your status and the laws of your state, it’s best to seek the services of a lawyer, as nothing you read here constitutes legal advice. Generally, if you are recognized as common law in a state that allows it, and move to a state that doesn’t, the new state will recognize you as married for legal purposes, because all states recognize the legal marriages of other states.

Changing Your Name in a Common Law Marriage

Getting your name changed for the purposes of common law is complicated. The requirements and processes vary by state, depending on whether and to what extent that state recognizes common law names or common law marriages. For example, in Washington, your right to use any name you choose is given by common law, however to change your name on government documents, government issued IDs, and your social security card, you need official documentation of a name change. An affidavit may satisfy some of these requirements, but you may need a court order for a name change. The process is much more complex and nuanced than a traditional marriage name change, and will vary by state.

What to Do If You Don’t Want to Be Recognized as Common Law

This part is actually quite simple. Remember that living together for a certain amount of time does not automatically grant common law status. If you want to avoid marriage and its entanglements altogether, including common law marriage, then all you need to do is refrain from acting as though you’re married.

How Do You Get a Common Law Divorce?

Divorce gets complicated when you’re common law. It’s one of the frustrating disadvantages, because while you aren’t granted the legal protections such as mandatory splitting of property and finances with a traditional marriage, you must use legal divorce proceedings as if married in order to exit a common law marriage. There is no special type of common law divorce proceeding, so you need to file for divorce the same way a married couple would.

What this can mean is that disagreements over who owns what, and what each partner is entitled to, become difficult to resolve. Remember that unlike traditional marriage, property and finances are not protected under a common law marriage agreement. So if one partner’s name is on the house you both live in, determining whether the other partner is entitled to anything  at all can end up quite the legal quagmire. The courts end up with the final say on matters such as asset division, child support and custody, and all the normal processes of a divorce. That means that if the terms of the divorce are contested, or there is any disagreement, the requisite legal fees to sort everything out and fight for something you may not have documented can make divorce more expensive.

Common law marriages greatly disadvantage a spouse who is not a named owner of any asset jointly controlled by the couple. Ideally, before entering into a common law marriage, you want to make sure that each partner is a named owner of any property and accounts, otherwise a divorce can be disastrous for one person.

Common law marriage may be an attractive option for some people for a variety of reasons. However remember that common law marriage must be actively entered into. Simply living together for a period of time doesn’t automatically make you common law married. Depending on your state, you might not be able to enter into a common law marriage at all. Also remember that common law marriages have very few of the legal protections afforded to traditionally married couples.


Image Source: https://depositphotos.com/

Ben Steele is a writer, theatre(re) professional, and nonprofit administrator. He was born in England, spent his teen and early 20s in Canada, and now lives in America. Please excuse his occasionally confused voice and the odd recalcitrant u after an o.

This post was updated December 27, 2018. It was originally published December 27, 2018.