Common Law Divorce
In a common law marriage, a couple can become legally married without obtaining a marriage license or performing a ceremony. The parties behave as if they are married and the state will treat them as if they are married. So, what about common law divorce? Will states treat a couple as separated if they carry on as if they are separated? The short answer is “No.”
Whether you are married as a result of a formal ceremony or through common law marriage, you must generally have a formal divorce in order to terminate the marriage. A common law marriage has the same legal effect as any other marriage and therefore, in order to terminate the marriage, a divorce must occur. If no formal divorce occurs then each spouse will retain his or her rights to share in property, inherit from the other, and to receive spousal support.
A common law marriage is formed when a couple 1) live together for a significant period of time, 2) hold themselves out to be husband and wife, and 3) intend to be married. The couple acts as if they are married even though they did not go through the legal formalities of forming a marriage.
About one-third of states acknowledge some form of common law bond. The precise standards that must be met in order to form a common law marriage will depend on each state. Some states modify the three elements and many of them have additional criteria as well. Once the state’s criteria are met, however, the relationship has the same legal status as a marriage where a license was obtained and a ceremony held. Therefore, divorce requires the same formalities necessary to terminate any other marriage.
Living separately from your spouse for several years will not terminate the marriage- whether the marriage was formed under the common law or not. Unlike common law marriage, the way that you hold yourself out to the public will not be the status that the state will recognize. In a common law marriage, the state will consider you married because you acted like you were married, but the same is not true if you act as if you are divorced.
Although living separately for a long period of time will not dissolve the marriage automatically, it is often a ground upon which a divorce can be granted. If you have been living separate and apart from your spouse for a certain period of time, the court may grant your divorce recognizing that the marriage has dissolved. Living apart could be viewed as evidence of incompatibility or irreconcilable differences, other grounds for divorce.
Each state sets its own standards for when a divorce can be granted. In the states that will grant a divorce based on the fact that you are living separate and apart for a certain time period, the duration of the separation varies anywhere from 60 days to three years. There are a handful of states that will not grant a divorce on these grounds at all unless the separation was a legal separation ordered by a judge.
If you are not sure what the status of your relationship is, the simplest solution is to take the appropriate legal step. If you want the rights and responsibilities of marriage, receiving a formal marriage is the best way to protect your interests. If you think that you have established a common law marriage but you don’t want to be considered married, then you may want to see a lawyer to see if common law marriages are recognized in your state and if you need to get a divorce. If you want to avoid creating a common law marriage, you should not hold yourselves out to be husband and wife. You may also want to sign a document, which clearly states that you and your partner do not wish to be considered married. These steps could help in the case that it is left up to the courts to decide how your relationship should be treated.
Trying to Avoid a Common Law Marriage?
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