How To End a Common Law Marriage & Other Problems

divorce attorney Jill Duffy

By Jill A. Duffy

Attorney, Cordell & Cordell

Note: This is Part 2 of a two-part article on common law marriages. Part 1 outlined how to know if you are in a common law marriage.

If you have lived with someone as husband and wife in a state that recognizes common law marriage and you now wish to end your relationship with that person, you must file for divorce. There is no such thing as common law divorce.

Common law marriages are subject to the same laws regarding marital property division and maintenance (alimony) as traditional divorces.

When there is a disagreement between partners as to whether they are in a common law marriage, the court will look at the actions the parties took during their relationship. Details such as filing joint taxes, joint bank accounts, including a partner on your insurance coverage, wearing rings, calling each other husband and wife, having children together, and using the same last name will make it more likely that a court will recognize the common law marriage as valid.

If a divorce is not filed, you will be legally married to your partner until their death. Should you decided to break up (not filing for divorce) and remarry, your partner from your common law marriage or your new spouse could come to court asking for your new marriage to be declared void (annulled).

The laws of the United States only allow a person to be married to one other individual at a time. Your common law partner could also seek to get any property you acquired since your break up because you were still legally married when you acquired it.

If you are living with someone in a common law marriage state and do not intend to have your relationship turn into a marriage, you should: keep your property separate from their property; never call that person your spouse; file single taxes; and make it clear to those you meet that you are not married.

In order to protect your rights, and your property, you need to make it clear to anyone who would look at your relationship that it is not a marriage relationship.

Although recognition of common law marriage has decreased, the instances of unmarried partners living together increased tenfold from 1960 to 2000. Most of these couples marry within five years of cohabitation.

That number is likely even higher when the recent recession is factored in, as economic considerations are increasing the number of people who live together before marriage or with no intent to marry to save money.

Because a great deal of unmarried partners choose to live together either before they get married or for an undefined term, a number of issues arise regarding assets and liabilities acquired during their time together.

If you are cohabitating with a partner in a state that does not recognize common law marriage, it is important to know your rights and to protect yourself.

Couples who live together can enter into contracts for their cohabitation, or prenuptial agreements, which will define how certain situations will be handled should they arise. Couples who commit to living together for a long term will run into the same issues that married couples come across.

Housing, parenting, wills and estate planning, insurance, taxes, and accumulation of assets and liabilities will all be considerations for these couples. Couples should make a plan or agreement for how these issues will be resolved before they become a problem. General principles of contract law will apply.

For the most part, people are free to enter into a contract for anything and to do anything they want (unless it violates the law).

 

Note: This is Part 2 of a two-part article on common law marriages. Part 1 outlined how to know if you are in a common law marriage.

 

Jill A. Duffy is an Associate Attorney in the Troy, Mich., office of Cordell & Cordell. She is licensed to practice in the state of Michigan. Ms. Duffy received her BA in Psychology and Spanish and graduated Magna Cum Laude from Oakland University. She received her Juris Doctor from Michigan State University College of Law and graduated Magna Cum Laude.  

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4 comments on “How To End a Common Law Marriage & Other Problems

    If I lived with a man 4 yrs we shared taxes, checking account lived as husband and wife for 4 yrs. I left 4 hrs ago do we need to file for divorce to be able to marry another person.

    What happens if you live in a Common Law Marriage state and fully follow and plan on getting married eventually, end up moving to a state that doesn’t follow it or recognize it and you end up splitting up. How do you go about getting the divorce done if that new state doesn’t recognize any of it?

    Common law marriages are dumb
    Common law marriages are dumb and if a person like my sister happens to be in a bad relationship with an abusive partner, break up with them, ask them to get out even though they have kids, law officers do nothing. It’s a joke. Get rid of this and can anyone help my sister out before I get into an altercation with this guy and get into trouble. This is the dumbest law I’ve ever heard. Heck If I was living with my sister can that be considered common law marriage even though we are related. If this is the case that is beyond me. Stupid law.

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