Divorce After Common Law Marriage

By Dustin Reichard

Divorce from a common law marriage can be quite complicated depending on the laws of the state in which you live. Property division, sharing debt and even alimony can come into play when you're ending a common law marriage.

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.

Is Divorce Truly Necessary?

In some limited situations, and depending on the law in your state, couples do not need to obtain a formal divorce to end a common law marriage. The following scenarios do not typically require court proceedings:

Short term relationships that have acquired few joint assets
Amicable breakups in which the couple have no children
Any relationship in which both parties can reach an agreement about joint assets and community property

In addition, you only can get a divorce from a common law marriage in stats that recognize common law marriages.

States that Recognize Common Law Marriage

In the U.S., common law divorce is only a concern in the following states, because these are the only states that recognize common law marriage.

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. If they do this, they can avoid a divorce should the relationship come to an end.

States that Don't 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, and therefore you'll be able to divorce if the relationship ends.

Easing the Pain

It's rarely a simple affair when it comes to ending a relationship. This holds true as well for terminating a common law marriage. The process can be emotional, complex, and time-consuming. However, both parties can take steps to minimize the pain and heartbreak that typically accompanies divorces or marriage dissolutions. In the end, try to be fair, patient, and understanding. Trying to find ways to ease the pain in a painful situation can only improve the situation's outcome.