Common Law Marriages and Divorce

Common law marriages sometimes present problems when the couple wishes to divorce. A common law marriage is a legal marriage in which no formal ceremony took place and for which no license exists. The spouses create the marriage by making a present-tense declaration to marry, living together and presenting themselves to the world like any other married couple.

The problem with common law marriages is not making them but unmaking them, particular when one spouse denies that a marriage happened.

During the happier times of the common law marriage, recognition of the couple is not a problem, any more than recognition is a problem for a couple who were formally married. Recognition only becomes a question in the event of divorce or sometimes when the survivor of a common law marriage that ended in death seeks survivor’s benefits.

Only 10 of the 50 states still permit new common law marriages within their borders, and five other have grandfathered the practice. Couples who reside in these states must divorce to end a marriage. Most states recognize common law marriages contracted in an alien jurisdiction that was the parties’ residence at the time of the marriage. In other words, even states that no longer recognize new common law marriages will divorce couples who created them earlier in other jurisdictions. At least three states — Illinois, Minnesota and Arkansas — do not recognize the claims of common law marriages of their own residents in foreign jurisdictions.

Common law couples cannot simply walk away when they wish to divorce, but ending a common law marriage requires legal advice. There are technicalities that may create problems. For example, some states demand that their residents live in the common law state before the court considers whether a common law marriage actually arose. Moreover, recognition can create difficulties when residents of a non-common law state live in a common law marriage state without becoming residents because these people may assume, incorrectly, that they have a valid marriage when in fact they do not. They discover this only if they attempt to divorce. This problem can be very difficult, for example, for a woman who asserts a claim to a husband’s pension.

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