Common Law Marriage, Divorce & Legal Separation: What You Need To Know

Many couples nowadays value freedom in relationships and choose common law marriage as a substitute for a legal one. But the circumstances may change with partners wishing to quit the relationship and oblige each other after the parting, so they may start to wonder whether legal divorce is possible in their case.

Although they have the right to do with their partnership whatever they like, it largely depends on the local legislature what the further development of the situation will be. But if common law marriage divorce is available in your jurisdiction, check out the variants you have on how to deal with your relationships officially and beneficially for both of you.

Common Law Marriage, Divorce & Legal Separation: What You Need To Know
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What Is Common Law Marriage

Prior to diving deeper into a common law marriage divorce, you ought to define what is a common law marriage itself. This term is used for partners who live together and act as if they are officially married but, in fact, they have no legal ties between them. Each state has specific requirements that enable you to attribute your couple as the one under common law marriage. The top common ones are as follows:

  • Cohabitation – the couple will qualify if only they live together for a specific period of time regarding your local legislature. Besides, be ready to deliver significant evidence on the issue.
  • Intent – the partners must display the intention to be married even if they are not currently. For instance, they approach each other as a husband and wife, have joint finances, and act as a married couple publicly.
  • Availability – both partners must be available for marriage, implying they are not currently married to anyone else or don’t have any other legal responsibilities referring to another partner and restricting them from getting married. Plus, they are of legal age already.

Suppose common law marriage is legalized in your state, the spouses under it will be counted as married ones, with all the relevant rights and responsibilities. Eventually, as a common law marriage partners, you can seek how to apply for divorce in Texas or apply any other lawful process to your relationships.

If your state doesn’t view the couple in common law marriage similarly to an officially married one under the current law, you may be restricted from taking any legal steps as a married couple.

Yet, if you still need legal actions to be taken against your relationships, you may be expected to meet the specific requirements to qualify for divorce or any other legal procedure. Consult local legislature representatives or a family lawyer to get a clear picture of common law marriage in your place of residence.


Common Law Marriage


Legal Separation


A relationship where a couple lives together and holds themselves out as married, without obtaining a legal marriage license or ceremony.

The legal process of ending a marriage.

A legal status that allows a couple to live apart and divide their property and finances, without officially ending the marriage.


The couple must: (1) live together for a certain period of time (varies by state); (2) intend to be married; (3) hold themselves out as married to others.

(1) Meet residency requirements (varies by state); (2) have grounds for divorce (e.g., irreconcilable differences, adultery, abuse, etc.); (3) agree on property division, alimony, child custody and support, or have these issues resolved in court.

(1) Meet residency requirements (varies by state); (2) agree on property division, alimony, child custody and support, or have these issues resolved in court.

Legal Recognition

Only a few states still recognize common law marriage. In those states, the couple must meet specific requirements to be considered married.

Divorce is recognized and governed by state law in all 50 states.

Legal separation is recognized in all 50 states, but the laws governing it vary.

Property Division

Property division in common law marriages depends on state law and can be complex.

Property division in divorce is governed by state law and can be complex. It can be resolved through agreement between the parties or by court order.

Property division in legal separation is similar to divorce, but the couple remains legally married.

Spousal Support

Spousal support in common law marriages depends on state law and can be complex.

Spousal support (also known as alimony) may be awarded to one spouse in a divorce, depending on factors such as the length of the marriage, each spouse’s financial situation, and their contributions to the marriage.

Spousal support in legal separation is similar to divorce, but the couple remains legally married.

Child Custody and Support

Child custody and support in common law marriages depends on state law and can be complex.

Child custody and support is determined based on the best interests of the child. The court may consider factors such as each parent’s ability to provide for the child, the child’s relationship with each parent, and any special needs of the child.

Child custody and support in legal separation is similar to divorce, but the couple remains legally married.


In states that recognize common law marriage, the couple must obtain a legal divorce before either party can remarry.

After a divorce is finalized, either party is free to remarry.

After a legal separation, either party is free to remarry, but the couple remains legally married.

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How to Divorce from Common Law Marriage

If the only thing nagging you about your upcoming divorce is ‘Do you have to fill out a form to get a divorce from common law marriage’. The answer is affirmative – if you wish to relish all the rights and perks the divorce can grant you, you should undergo all the steps as divorcees from official marriage do.

Start with checking out whether your jurisdiction approves common law marriage. Only then you can get prepared to divorce. You will have to deliver the evidence to qualify for common law marriage status. Plus, you should meet residency requirements and cover the waiting period if there are any.

After that, you will have to move through the standard marriage termination process. File for divorce, serve your partner, choose your divorce strategy, negotiate on common divorce points with your former beloved or move the case to court, and finalize the divorce. It all depends on how cooperative and hard-working you both are about your marriage termination.

Again, if you are hesitant as to any divorce process to fit specifically to your case, you’d rather consult a relevant specialist and follow their advice to succeed in your case. Even if you are confident about your choice, a general consultation from the attorney may help you avoid common mistakes.

Is It Possible to File for Legal Separation from Common Law Marriage

The situation about legal separation is similar to a common law marriage divorce. This implies that you are able to get legally separated as a couple under common law marriage if your local legislature allows it.

If you are lawful to do so, start your preparations for legal separation. Begin with collecting proof you are a common law spouse. Meet the legal separation requirements according to your jurisdiction. Complete and file your papers. Work on an agreement with your partner, family lawyer, mediator, and any other relevant specialists. Opt for cooperation as your main strategy to reach the desired outcomes easier. Finalize the process and use the results to guide your post-separation life and relationships. Besides, you can apply for additional orders and restrictions the legal separation enables.

In case your state doesn’t support common law marriage but you still wish for a legal separation, ask your family law attorney to aid you to find a legal way to succeed. They will guide you on specific requirements you have to comply with and assist in creating the best suitable strategy for dealing with your relationships officially so that every family member is safe and satisfied in the end.


If you choose to have a partnership under common law marriage, you’d better discover your rights and responsibilities to be prepared for any life-turning events. When things happen you are to apply for common law divorce, start with referring to your local legislature. Your state will define your status, procedure, and requirements you have to comply with to succeed with your intentions.

If you have any hesitations or misunderstandings on how to quit a common law marriage officially, you are highly recommended to work with an experienced lawyer and follow their advice to reach desirable aftermath. In addition, mind relying on your support network since the divorce from a common law marriage may be not less stressful than from an ordinary official partnership.


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