Divorce in traditional marriage vs common law

If you’re in a state that allows common law marriage, you may want to read up on the legal rights and responsibilities that come with it.

What's Inside

What's Inside

Millions of individuals get married each year. And while people often associate getting married with things like obtaining a marriage license and having a wedding or other marriage ceremony, traditional marriage isn’t the only option for getting married. Another option—common law marriage—may also be available in certain jurisdictions and be just as valid. 

In this article, we explain what common law marriage is and how it differs from traditional marriage. We also discuss common misconceptions about common law marriage and whether and how you can end one in divorce. 

Traditional vs common law marriage

Deciding to get married is a big step in any relationship. However, before deciding whether traditional marriage or common law marriage is right for your situation, it’s important to understand how each one works. 

Traditional marriage

While the precise requirements and fees for obtaining any necessary paperwork and getting married may vary by state, the process is generally consistent throughout the United States.

A traditional marriage refers to a legally recognized marital union. It’s typically formalized by obtaining a marriage license and having a ceremony in the presence of one or more witnesses and conducted by an authorized officiant (such as a religious leader or government official). After the marriage is finalized, the couple receives a marriage certificate, which serves as an official record confirming the marital union between the parties.

Once a couple is legally married, they enjoy a variety of benefits, including: 

  • The ability to file joint tax returns
  • Inheritance rights
  • Eligibility for spousal benefits such as social security, health insurance and pension benefits 
  • Presumptions of parentage and other legal protections if the couple has children

What is common law marriage? 

Conversely, common law marriage is a type of marriage that doesn’t require the legal formalities of traditional marriage. It’s sometimes referred to as informal marriage. Common law marriage is generally characterized by a commitment between two individuals to enter into a marital relationship with a shared intent to live their lives together as a married couple. 

A couple married under common law benefits from the same marital rights as a couple in a traditional marriage. However, there are no specific formalities or requirements of common law marriage. So courts typically look to a variety of factors in determining whether a valid common law marriage was formed. Below are some common examples of these factors: 

  • Whether the couple actively and publicly holds themselves out as married spouses
  • Whether the couple files joint tax returns
  • The length of the relationship
  • Whether the couple lives together
  • Evidence of shared finances and property ownership
  • How the couple addresses decision-making authority over any children

This isn’t an exhaustive list. Ultimately, courts look to any evidence that shows a mutual agreement and intent to be married.

It’s also important to note that the requirements for forming a valid common law marriage vary by state. Thus, check the laws of your jurisdiction or speak with a licensed attorney in your state to understand your rights and responsibilities before proceeding. 

Difference between common law and marriage

As discussed, traditional marriage and common law marriage are both valid and enforceable types of marriage, yet they differ in several aspects. Below is an overview of the key distinctions between the two. 

Traditional MarriageCommon Law Marriage
FormationFormed by meeting certain requirements specified by law, which typically include (1) obtaining a marriage license and (2) solemnizing the marriage through a formal ceremony.Doesn’t require a marriage license or ceremony. Instead is established by evidence of the couple’s agreement and intent to be married, which may be established through a variety of factors. 
Legal recognitionAvailable in all states. Recognized under the laws of certain limited states. 
Proof of marriageThe couple obtains a marriage certificate, which serves as proof of a legally recognized and valid marriage. The couple may need to take action to prove that they’re married in the event the validity of the marriage is disputed or to obtain spousal benefits in the event one spouse dies. 

Common law marriage isn’t available in all states. States that currently authorize some form of common law marriage include: 

  • Colorado 
  • Iowa
  • Kansas
  • Montana
  • New Hampshire
  • South Carolina
  • Texas 
  • Utah 

A few other states no longer recognize common law marriage but did in the past. Some of these states recognize common law marriages that were validly formed prior to a certain date. However, check the most up-to-date laws of your state to verify whether common law marriage is presently valid where you live. 

Moving from a state where common law marriage is permitted to a state where it’s not

Although common law marriage isn’t legally recognized under the laws of all states, a validly formed marriage that’s legal under the laws of one state will be recognized in all other states. This is because of the full faith and credit clause of the United States Constitution. 

Under the full faith and credit clause, states must generally recognize and respect the laws of other states. With respect to marriage, specifically, this means that each state must legally recognize marriages that were validly formed under the laws of another state. 

So if you’re validly married by common law in a state that allows common law marriage, your marriage will still be deemed valid in other states—even states that don’t authorize common law marriage under their own laws. 

Is there a common law divorce?

There is no such thing as “common law divorce”. 

@marblelaw

Marble’s Managing Attorney for Arizona, Lowen Jones, walks us through what the end of a common law marriage means in the eyes of the court. Hint: in Arizona, it’s not that complicated. #commonlawmarriage #divorce #lawyertok #legaltiktok #marblereviews #marble

♬ original sound – Marble Law

People often mistakenly believe that because common law marriage doesn’t require any formal paperwork or process, ending the marriage also doesn’t require any formal legal action. However, this is not so. Rather, to terminate a common law marriage, the couple must go through the same formal divorce proceedings as they would to terminate a traditional marriage. 

Just like traditional marriages, common law marriages require the couple to file for divorce in a court of law, where they must address issues such as property division, spousal support, child custody and child support. 

The primary difference between a traditional divorce and common law divorce is that a couple married by common law may first need to prove that they had formed a valid marriage under the laws of the state as part of the divorce proceedings.  

When to speak with an attorney

Regardless of whether you entered into a traditional marriage or a common law marriage, it’s important to remember that terminating your marriage requires formal divorce proceedings. 

If you’re looking to end your marital relationship, having an attorney in your corner may be beneficial to your case moving forward. For example, an experienced divorce and family law attorney can help you: 

  • Understand your legal rights and responsibilities
  • Take steps to prove that you validly entered into a common law marriage
  • Prepare and file paperwork with the court
  • Represent your interests in negotiations, mediation and court

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Frequently asked questions

What are the disadvantages of common law marriage?

While common law marriage offers a number of advantages, it also carries certain disadvantages in terms of legal recognition, rights and protections for the couple and individuals involved. For example, common law marriage isn’t recognized in all states, meaning that it may not be an available option for all people looking to get married. Additionally, because there is no paperwork or formal process required to establish a common law marriage, even where common law marriage is recognized, it may be difficult to prove that you and your spouse are legitimately married. This, in turn, may lead to complications when it comes to matters involving property division, inheritances and other rights and obligations if one spouse dies or the couple chooses to separate.

What is the difference between common law and traditional marriage?

Common law and traditional marriage differ in several key aspects, including their legal recognition and formation. Whereas traditional marriage is universally recognized throughout the United States, common law marriage is only recognized under the laws of certain states. In terms of formation, traditional marriage is typically established by meeting certain legal requirements, such as obtaining a marriage license and having a marriage ceremony. Conversely, common law marriage is generally established by satisfying a variety of elements that show the parties’ intent and consent to be married.

Do you have to get a divorce for common law marriage?

Generally speaking, yes. Even if you’re common law married, you’ll most likely have to go through the formal divorce process if you choose to end your marriage. That said, the requirements for ending a common law marriage vary from state to state. Check the laws of your jurisdiction to confirm what steps are required to end your common law marriage before moving forward.

Disclaimer: This article is provided as general information, not legal advice, and may not reflect the current laws in your state. It does not create an attorney-client relationship and is not a substitute for seeking legal counsel based on the facts of your circumstance. No reader should act based on this article without seeking legal advice from a lawyer licensed in their state.

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