Divorce After Common Law Marriage

From LoveToKnow Divorce

Some people choose to live together outside of holy matrimony because they think it's "easier"; however, they may be faced with having to get a divorce after common law marriage if the relationship ends.

Ending a common law marriage is more complicated than just leaving.

Definition of Common Law Marriage

Common law marriage is not the same thing as living with a partner of the opposite or same sex. A common law marriage is not solemnized in front of an officiant (civil or religious), nor is it licensed by any government agency. In order to qualify as a common law marriage, the couple must agree that their relationship is a marriage and present themselves as husband and wife to the world.

Presenting Yourself as Being Married

If you and your partner do the following, you are presenting yourself as being married:

  • Share the same last name
  • Refer to each other as husband and wife
  • File a joint income tax return

Common Law Marriage in the United States

In the U.S., only the states listed below and the District of Columbia recognize common law marriage:

  • Alabama
  • Colorado
  • Iowa
  • Kansas
  • Montana
  • Rhode Island
  • South Carolina
  • Texas
  • Utah

If you live in one of these states and enter into a common law marriage with your partner, you are considered to be legally wed. This is the case even though you never went through a marriage ceremony of any kind.

People who want to avoid having their common law relationship being interpreted as a marriage can enter into an agreement spelling out the fact that they do not intend to enter into a marital relationship, common law or otherwise.

States That Do Not Recognize Common Law Marriage

If you live elsewhere in the United States, you cannot enter into a common law marriage, no matter how long you and your partner lived together. However, if your relationship was recognized as being a common law marriage in another state and you relocate, the new state will recognize this fact as well.

Getting a Divorce After Common Law Marriage

The procedure for getting a divorce after common law marriage is the same as for couples who went through a formal marriage ceremony. You would file papers asking the Court to dissolve your common law marriage and divide any property the two of you accumulated during the time you were together.

If you have children together, you can request that the Court make a determination about custody and order that child support be paid. A former common law spouse can also petition the Court for alimony.

Property Division

The rules about property division apply in a common law divorce as well. If the parties are unable to agree on a way to divide their assets, the Court will listen to submissions from both of them and rule on this issue.

Former common law couples also have the option of asking a mediator to help them work out an agreement about dividing the marital property. Whatever you agree to with the mediator will form part of a binding contract.

Responsibility for Paying Debt

The person whose name appears on a debt will be responsible for paying it. An agreement may be worked out where a former common law spouse is to pay a certain debt. However, if that person fails to make the payments as agreed, the creditor will look to the primary borrower to pay off the debt.

If you have entered into a common law marriage with your partner and want to end the relationship, simply moving out is not enough. Depending on where you live, you may need to ask the Court for a divorce after common law marriage.

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Comments

Mel,

What you need to do is gather some information before making any decisions. Can you negotiate a longer term for your loan to lower your payments? I would suggest approaching your lender before you have to start making payments and find out what your options are. Give them the option of working with you to find a solution that will fit your budget.

Jodee Redmond LoveToKnow Editor

-- Contributed by: JCRedmond

Student loan debt responsibilities? My common law husband should not be responsible for my student loan debt payments that are now imminent (June 2009), should he? Is there a way around this? I think one problem is that we file taxes as married filing jointly (rather than married filing separately). Thus, the bank is going to look at our combined income vs. mine and mine alone. And that's a problem with that because I only make about $1,000 (minus 12% for estimated quarterly taxes) a month most of which goes to food, phone, internet, cable, and garbage collection. He pays the mortgage (house is in his name), insurance, heating and electricity, but he makes about $3,000 a month. Why should he have to pick up the slack when I come up short subsequent to my paying off the student loan? Is there a loophole where the bank cannot take into account his income, but only mine so that an "income contingency" agreement can be reached? We have one dependent. She is his stepdaughter. Should I file for divorce to protect him. If I don't, he'll probably divorce me if he ends up having to pay my debt.

-- Contributed by: Mel

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