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 Marriage | Common Law Marriage | |
| Formation | Formed 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 recognition | Available in all states. | Recognized under the laws of certain limited states. |
| Proof of marriage | The 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. |
Is common law marriage legal in every state?
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”.
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
