Is There Such a Thing as a Common-Law Divorce?

While the specifics vary by state, there are a few commonalities that you should know when it’s time to escape your common-law spouse or kick him or her to the curb.

Marriage isn’t always the best choice for everyone, and the term “common-law marriage” gets thrown around a lot in today’s society. But it can actually have very specific legal meaning. That meaning is never more apparent than when one person seeks to dissolve the marriage and go their own way. It takes two to be married, but only one to start the divorce process. While the specifics vary by state, there are a few commonalities that you should know when it’s time to escape your common-law spouse or kick him or her to the curb. Common-law divorce is usually just divorce, and it can get ugly.

Is Your Common-Law Marriage Legal?

First off, there’s no common-law divorce without a common-law marriage. In most states, common-law marriage means your relationship has to pass at least these three basic qualifiers:

  • Cohabitation. You must live with your partner.
  • Both people involved must show “intent” that they are married. It takes two to tango, so no one can be forced into common-law marriage against their will.
  • As final proof, the married couple must have announced and acted publicly as such. Regardless of whether that’s two husbands, two wives, or husband and wife, the public appearance of such a family is one of the cornerstones of common-law marriage.

The final consideration is that the marriage must be otherwise legal in the state. For instance, in areas where gay marriage is not recognized, there may be no common-law protections in place. Also, if either spouse is married already, or under a condition that prevents marriage (such as specific immigration or criminal situations), any claims to common-law status are revoked.

How to Go About Separation

When avenues of communication break down and you just aren’t seeing eye-to-eye anymore, it may be time to start the separation process. If your relationship isn’t a common-law marriage, then it’s just the breakup of roommates or peers and follows the local ordinances for such. If you do qualify as part of a common-law marriage, then the steps for separation in your state likely follow the same as for legally married couples. Whether or not you’ve got a marriage certificate or have given vows and exchanged rings, you must follow your state’s procedures for ending the marriage.

Traditionally, this requires filing for either separation or divorce with the courts and paying the appropriate fees. Lawyers may help pro bono or with minor financial consideration if there is a mutual dissolution of the relationship, a no-fault situation, but it’s entirely possible that things could otherwise drag out in court every bit as much as if you had a legally binding written marriage certificate or license.

When Things Don’t Go as Planned

If you can keep things amenable, you can likely get everything done for just court fees. If your soon-to-be-former common-law spouse fights the divorce agreement, however, remember that you are both bound by the marriage laws of your state. In this situation, you may well find yourself needing to get a legal-fee loan and paying a lawyer to ensure your property is properly divided, your income or assets are protected, and possibly even to take care of maintaining the rights of your children and parenthood.

In these respects, it’s often best to take full advantage of those free consultations and divorce-assistance offers you hear on the radio from local attorneys. At the very least, they can point you in the right direction and let you know if you can nullify obligations by having your common-law marriage recognized as not being a true marriage or if the laws of marriage in your state apply and you must go through the courts for resolution.

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