How Does Common Law Impact Divorce?

Dedicated Divorce Attorney in Cumming Explains

Most people have heard of “common law” marriage, but very few understand the legal realities of the term. Common law marriages are not recognized in the majority of states. However, the state of Georgia does recognize common law marriages created before 1997. Common law marriage is also recognized in Alabama, Colorado, the District of Columbia, Idaho (created before 1996), Iowa, Kansas, Montana, New Hampshire (for inheritance purposes), Ohio (created before October 1991), Oklahoma, Pennsylvania (created before September 2003), Rhode Island, South Carolina, Texas, and Utah.

Same-sex relationships are not recognized as common law marriages in any state. Even states that do not recognize common law marriage are generally expected to treat a common law marriage from another state as valid during legal proceedings. If your relationship precedes that time limit, you will want to be familiar with common law marriage laws if you are filing for divorce.

What Constitutes a Common Law Marriage?

The details of common law marriage vary from state to state, but the two central components are cohabitation and “holding out.” Many people have heard that living together for seven years automatically means a couple is common law married; this is not true, though cohabitating is a major element of a common law marriage.

Even more important is the concept of “holding out,” which means the couple is presenting themselves to the world as a married couple. They may share a last name, file joint tax returns, and other common social signifiers of marriage. There is not a single, simple test of whether or not a couple is common law married, so many legal experts recommend a couple sign a simple agreement stating whether they intend to be married or not to prevent future murky legal battles.

Misconceptions about Common Law Marriage

A variety of rights and privileges are extended to married couples in the United States, but only specific rights are also conferred upon couples in a common law marriage.

For example, only legally married couples have the right to the equal division of family assets; in a common law marriage, the spouse who owns a property keeps full rights to it in the event of a split and can sell or mortgage it as they see fit. If you and your common law spouse intend to purchase property, consider a co-ownership agreement to ensure both names are on the deed.

In the case of a medical emergency or death, legally married couples once again have a legal leg up. Assets automatically go to the surviving spouse barring other arrangements in the case that a legally married spouse is disabled or dies. However, in a common law marriage, the surviving partner now must prove that the marriage was legal, and they may be excluded from treatment decisions by their common law spouse’s family.

Children born in a common law marriage have the same rights as those in a legal marriage. Both parents have automatic legal rights to the child; neither parent needs to adopt the child, and the parents have the same obligations that legally married parents do.

Common Law Divorce

There is no “common law” divorce in America. Even if you are married by common law, you will be required to have a legal divorce. In many cases, common law marriage can add significant complexities and difficulties to divorce proceedings. There are no simple tests to determine whether or not a couple is common law married, which brings another layer of complexity to the divorce as the court looks to determine whether or not the couple was married to begin with. A relatively simple legal document like a marriage certificate can help eliminate all these possible future struggles.

A couple in a common law marriage has never obtained a legal marriage license, but still cohabitates and presents themselves to the world as a married couple. A common law marriage offers a number of complications when seeking a divorce. Because there is no legal record of the marriage, the court must first determine whether or not the couple were common law married before proceeding with the rest of the divorce case. It also eliminates a number of the benefits legally married couples enjoy, such as the protection of the family home and property. If you are in a common law marriage and considering a divorce, seek out the advice of a family law attorney in Cumming to be sure you are aware of the laws in place and what you need to do to ensure a positive outcome in court.