Author: Margaret N. Lynn – lawer, writer and editor
Most people are aware of the concept of common-law marriage. Under this scenario, two people who live together in a romantic partnership for many years are seen as married in the eyes of the law. While common-law marriage only applies to couples living in 11 of the 50 states, the union is recognized throughout the country as a legal marriage. Technically, there is no such thing as a common-law divorce, so couples considered married under common-law marriage statutes must dissolve their union through traditional divorce proceedings.
- While laws in the traditional sense are based on the work of legislators, common-law systems are based around the decisions made by judges and the court system. Using precedence as a determining factor, common laws are based on what has been accepted or regulated by the courts in the past. Common-law marriage goes back to the days when the America was a British colony, as common-law was traditionally used in England and throughout its colonies. Today, there are 11 states that still recognize common-law marriages. These include Alabama, Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, Utah and Washington, D.C.
- Common-law marriages vary dramatically from state to state. In some areas, couples who live together in an exclusive relationship for a period of time are considered married in the eyes of the law. This time period can range from 6 months to 3 years or more. This law is most applicable when it comes to the death of one partner or the dissolution of the union. At death, common-law marriages help protect the assets of the couple and the rights of the surviving spouse. When the couple decides to separate, common-law marriage helps protect both partners, and ensures all assets and childcare is divided appropriately.
- Common-law marriage statutes in each of the 11 states that allow it have different requirements for this type of marriage. A couple who meets these requirements is considered legally married. If this couple moves to another state that is not one of the 11 common-law marriage states, they are still considered married. This is due the “Full Faith and Credit” principle, where laws of one jurisdiction are fully recognized in another. A couple living in an area that does not recognize common-law marriage could also briefly move to one that does, declare themselves married under that state’s law, then move back to their home state as common-law husband and wife.
- The most prevalent misconception regarding common-law divorce is that it works the same way as common-law marriage. That is, a couple who lives apart for a certain amount of time and has the intent to divorce will be considered divorced in the eyes of the law. This is false in every single state. Common-law divorce simply does not exist. Couples considered married by common-law marriage statutes must complete the traditional divorce filing process, including the division of property, alimony, child support and custody proceedings.
- With common-law divorce, as with any divorce, there are ways to make the process simpler and more affordable for both parties. First, try and divide property and other assets in a way that both partners can be satisfied with. This will eliminate the need for costly and time-consuming court cases. Second, work out a childcare arrangement before heading to the courts. Finally, consider using a mediator instead of going to a divorce court. A mediator can perform simple divorces quickly and effectively when most major decisions related to the union are not in conflict.