How do we end a common law marriage?

Read this article to learn about ending a common law marriage.

By , Attorney · Cooley Law School

Question

My ex and I separated four years ago but had a registered common law marriage. My current boyfriend and I, with whom I've lived all this time, are discussing marriage, but I'm not sure whether any divorce laws exist for a registered common law marriage. I also found out that my ex registered another common law marriage two years ago. Could that mean that we aren't married?

Answer

Contrary to popular belief, cohabitation alone for an extended period isn't enough to create a common law marriage. For your common law marriage to be valid, you must live together (for a period defined by your state), intend on living as a married couple, and you must portray yourselves as married to the world. The most significant difference between common law and traditional marriage is that the couple doesn't obtain a license before getting married.

Only a few states allow common law marriages today. Your first step is to determine if your common law marriage was valid when you entered it. Although the requirements vary a bit from state to state, typically, you'll have to prove to the court that you and your ex both intended to be married. You can demonstrate this with evidence of conduct showing an intent to be married, including:

  • a written agreement signed by both of you showing your mutual intent to be married
  • witnesses who will testify to your marital status
  • witnesses who will testify that you held yourself out as a married couple, and
  • documents showing that you called each other spouse and/or shared a last name.
Some states require couples to register the common law marriage, and it sounds like that's the case for you, which should be enough to demonstrate your intent.
If a court determines that your common law marriage is valid, then you'll need to follow the steps to obtain a traditional divorce before you can remarry. You can begin the divorce process by filing a formal petition (request) with the court where you live. You'll need to make sure you understand your state's residency and other divorce requirements. All states allow spouses to use a no-fault divorce process, meaning you don't need to prove that your spouse was at fault for the divorce in order for the court to grant your request. This process is usually faster, less expensive, and less stressful than a contested, fault-based divorce.

Neither you nor your ex-spouse are free to remarry until the court signs your judgment of divorce, which means your partner's second common law marriage is invalid.

Legal Information & Books from Nolo
LGBT Laws
Marriage, Domestic Partnerships, and Civil Unions
Taxes and Estate Planning For LGBT Couples
LGBT Rights Under U.S. Immigration Law
The Supreme Court's DOMA Decision
See All LGBT Laws Articles
Get Professional Help
Talk to a Family attorney.
There was a problem with the submission. Please refresh the page and try again
Full Name is required
Email is required
Please enter a valid Email
Phone Number is required
Please enter a valid Phone Number
Zip Code is required
Please add a valid Zip Code
Please enter a valid Case Description
Description is required

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you