Property Division in a Common Law Marriage Divorce

Although a "common-law marriage divorce" may seem rather contradictory, the fact is that if you are in a common-law marriage, and decide to split up, you are still required to follow the same divorce rules and proceedings as those who are traditionally married. First of all, you should be well-aware of what constitutes a common-law marriage. 

Where is Common-Law Marriage Recognized?

Although three-quarters of the states in the United States no longer recognize common-law marriages, the remaining states do, although with some restrictions. Alabama, Colorado, Oklahoma, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah and Washington D.C. recognize common-law marriages, while Georgia, Ohio, Pennsylvania, Idaho and New Hampshire have grandfathered common-law marriages so that those which were in place before a certain date are still considered valid, however none after that date. 

What Constitutes a Common-Law Marriage?

In Texas, there must be three elements present in order for your relationship to be considered a common-law marriage, and they are: You must agree to be married, you must have represented to others that you are married, which can include social introductions or documents such as joint income tax returns, and you must have lived together in the state of Texas. While certain states have time periods in which you must have lived together as husband and wife in order to be have a common-law marriage, others, such as Colorado, do not. There is no set time period under Colorado law to be declared common-law married, therefore if you have been living together for a month and have held yourselves out as a married couple, you could very well be engaged in a common-law marriage. Generally speaking, "holding yourself out" as being married, can include any of the following:

  • Using words such as "husband" and "wife"
  • Using the same last name
  • Wearing wedding rings
  • Filing joint tax returns

Property Division in a Common-Law Divorce

To obtain a divorce from a common-law marriage, you must go through the exact same procedure as traditionally married couples. All the rights and obligations of common-law marriages are identical to those who are traditionally married, therefore the divorce proceedings are also the same. Depending on your particular state laws, you may be subject to the community property laws of certain states, or the asset division laws of others. Since your divorce will occur like any divorce, you need to not only research the asset laws in your particular state, but also hire an experienced divorce attorney, preferably one who also has a history of common-law marriage divorces. A common law marriage and subsequent divorce may present significant questions and misunderstandings, therefore a skilled divorce attorney can be your best defense to protect your rights under the law.

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