Common law divorce
There’s a lot of speculation and misinformation when it comes to the concept of common law divorce. In actual fact, there technically isn’t any such thing as “common law divorce,” in the sense that the procedures for divorce are the same whether the marriage is made under common law or not. In other words, if a marriage takes place in accordance with common law, it must go through the same divorce process as any other marriage.
What is Common Law Marriage?
In order to fully understand common law divorce we must first look at common law marriage. In the United States, a common law marriage is essentially a marriage which occurs without a formal ceremony and the related legal procedures. This type of marriage is not recognized in all states – some never allowed it, and some have recently introduced laws to eliminate any legal entitlements associated with common law marriage.
How a common law marriage is actually formed is dependent on the laws of the state where the couple lives. In general, the prerequisites for a common law marriage tend to include factors such as both people being of consenting age, public recognition of the marriage, and living together. Essentially, if a couple announce themselves as married to their community and live according to a married lifestyle together, this constitutes a legal marriage in some states. No formal ceremony is necessary to confirm the marriage.
Dissolving a Common Law Marriage
When it comes to common law marriage, the only unusual thing is that contract of marriage itself – all other aspects are more or less the same, including divorce. That means if you’re married under common law and you want to dissolve the union, you’ll have to go through the appropriate court in order to do so. The exact requirements and procedures will differ from state to state.
Before you get tangled up with filing for divorce procedures, you need to consult your state laws to determine whether or not you’re actually married under common law. Only eleven states in the U.S. have provision for common law marriages, so unless you live or previously lived in one of those states with your partner under the conditions described by that state’s laws for the formation of a common law marriage, you’re not legally married and thus don’t have to file for divorce.
Assuming you are legally married under common law, the next step is to file for divorce. Again, this procedure is the same as if you had been married via a ceremony. You’ll file divorce papers and either settle on important issues such as child custody and property division privately with your spouse, through a mediator, or through the court system.
Mediation
Mediation should be a part of any divorce process when possible, and common law divorce is no exception. Mediation simply involves working out all the most important issues involved in the divorce with your spouse, rather than battling it out in court. Mediators are trained to try and achieve the best possible mutual outcome. It’s always better to agree on important issues rather than have them decided by a judge, especially when it comes to child custody. A prolonged custody battle can worsen the negative effects a divorce has on children.
Property Division and Child Custody
Again, these issues are best worked out through mediation, but sometimes that just isn’t practical. In those cases, a judge will preside over the matters of how property is to be divided up and who is allowed custody and visitation rights of any children of the marriage. Since the divorce procedures are the same as those for a typical ceremonial marriage, the factors a judge uses to guide these decisions will be based on the divorce laws of the state.
Tax Implications
Because some common-law married couples take advantage of that status to file tax returns as a married couple (which of course is perfectly legal), a common law divorce can mean a change in tax status for some people. You’re best to consult the IRS to determine your new tax obligations after the divorce, or discuss the issue with your lawyer if you have one.
Palimony
Palimony is a term which refers to the division of property at the end of a relationship between two people who have been living together but who have no legal marital status. Bear in mind that if you’re married under common law, this does not apply to you since the marriage is legally recognized. However, if you’re in a de facto relationship which does not qualify as a common law marriage, you may in some circumstances be entitled to a share of property despite the lack of a legal marriage. But these types of settlements only tend to occur in rare cases where some large misconduct has occurred on the part of one spouse, or other special circumstances have taken place.
If you need assistance getting a divorce you may choose to use a divorce lawyer or you can do it yourself. Legalmatch will provide lawyer assistance.Need a Divorce Lawyer?
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