Can You Get a Common Law Divorce?

Common law marriages are discussed often enough, but what happens when a common law marriage doesn't work out? One would think that since no ceremony or certificate occurred with the marriage, then the divorce should be just as easy, but that isn't always the case. How you can obtain a common law divorce depends on your family situation, the state in which you live and the laws of that state.

First, some states don't recognize common law marriages, which means that a common law divorce is equally as impossible. If the state doesn't recognize a common law marriage, then it is as if the marriage never occurred, and a divorce cannot be pursued. The only exception is if you were married in a state where common law marriage is accepted and then move to a state in which it is not recognized. The U.S. is bound by the constitution to a concept called "Full Faith and Credit", which means that each state must uphold the laws governing its sister states.

For example, if you and your girlfriend decide that you want to be common law married, but don't live in a state that recognizes it, you could move to a state that does, present yourselves as married, then move back to your home state. In that instance, your state would have to recognize you and your wife as married under Full Faith and Credit. Of course, this could also work to your disadvantage if you were to travel and, as a joke, present yourselves as married; then your home state courts would have to decide whether or not you are legally joined by marriage.

The states that currently (as of this writing) recognize common law marriages are: Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah and Washington D.C. In Ohio, they are only recognized if they were formed before October 10, 1991 and in Pennsylvania, they are only recognized if formed before January 1, 2005.

That said, what about the states in which common law marriage is recognized? What do you do when you want a divorce?

Essentially, a common law marriage is the same as any other type of marriage in states which recognize them, which means that you must usually follow the exact same procedure as a regular married couple when you want a common law divorce. You must petition the courts to arrange alimony, assign child support, divide property and declare a divorce. Although you can make the common law divorce as complicated or uncomplicated as you'd like, you still must take the legal route.

So, in essence, common law divorce does not exist. Just because you are common-law married doesn't mean that you can simply present yourselves as divorced and have it be so. You'll still have to obtain a court order and go through the necessary process to become divorced. Anyone who tells you that common law divorce exists is lying or misinformed.

If, however, you are married by common law and have decided to split up, there are ways to make your divorce more manageable. For example, instead of asking the courts to divide property, you could agree amongst yourselves or go through mediation, which takes much less time and is also less stressful.