About Common-Law Divorce

By Emily Beach
About Common-Law Divorce

Wiki Commons

Most people are aware of the concept of common-law marriage. Under this scenario, two people who live together in a romantic partnership for many years are seen as married in the eyes of the law. While common-law marriage only applies to couples living in 11 of the 50 states, the union is recognized throughout the country as a legal marriage. Technically, there is no such thing as a common-law divorce, so couples considered married under common-law marriage statutes must dissolve their union through traditional divorce proceedings.

History

While laws in the traditional sense are based on the work of legislators, common-law systems are based around the decisions made by judges and the court system. Using precedence as a determining factor, common laws are based on what has been accepted or regulated by the courts in the past. Common-law marriage goes back to the days when the America was a British colony, as common-law was traditionally used in England and throughout its colonies. Today, there are 11 states that still recognize common-law marriages. These include Alabama, Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, Utah and Washington, D.C.

Function

Common-law marriages vary dramatically from state to state. In some areas, couples who live together in an exclusive relationship for a period of time are considered married in the eyes of the law. This time period can range from 6 months to 3 years or more. This law is most applicable when it comes to the death of one partner or the dissolution of the union. At death, common-law marriages help protect the assets of the couple and the rights of the surviving spouse. When the couple decides to separate, common-law marriage helps protect both partners, and ensures all assets and childcare is divided appropriately.

Effects

Common-law marriage statutes in each of the 11 states that allow it have different requirements for this type of marriage. A couple who meets these requirements is considered legally married. If this couple moves to another state that is not one of the 11 common-law marriage states, they are still considered married. This is due the "Full Faith and Credit" principle, where laws of one jurisdiction are fully recognized in another. A couple living in an area that does not recognize common-law marriage could also briefly move to one that does, declare themselves married under that state's law, then move back to their home state as common-law husband and wife.

Misconceptions

The most prevalent misconception regarding common-law divorce is that it works the same way as common-law marriage. That is, a couple who lives apart for a certain amount of time and has the intent to divorce will be considered divorced in the eyes of the law. This is false in every single state. Common-law divorce simply does not exist. Couples considered married by common-law marriage statutes must complete the traditional divorce filing process, including the division of property, alimony, child support and custody proceedings.

Considerations

With common-law divorce, as with any divorce, there are ways to make the process simpler and more affordable for both parties. First, try and divide property and other assets in a way that both partners can be satisfied with. This will eliminate the need for costly and time-consuming court cases. Second, work out a childcare arrangement before heading to the courts. Finally, consider using a mediator instead of going to a divorce court. A mediator can perform simple divorces quickly and effectively when most major decisions related to the union are not in conflict.

About the Author

Emily Beach works in the commercial construction industry in Maryland. She received her LEED accreditation from the U.S. Green Building Council in 2008 and is in the process of working towards an Architectural Hardware Consultant certification from the Door and Hardware Institute. She received a bachelor's degree in economics and management from Goucher College in Towson, Maryland.