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Common Law Divorce & Other Myths

While marriage is a legal recognition of your commitment to another person, it is not the only way to show your dedication. Simply living together and sharing responsibilities is a strong display of the bond between two people. In some states, couples who live together can qualify as married under common law. This typically applies when a couple has lived together for a time and acts as spouses would, like filing joint tax returns or assuming the other’s last name. But what happens when a common law couple wants to end their relationship? Do they need to pursue a common law divorce?

In this blog, we’ll take a look at the concept of common law divorce and other myths related to common law marriage in the U.S.

There Is No Such Thing as a “Common Law Divorce”

Just nine states currently recognize common law marriage: Colorado, Iowa, Kansas, Oklahoma, Rhode Island, Texas, Utah, Montana, and New Hampshire. Some only recognize it for inheritance purposes. In the states that do recognize common law marriage, is a special “common law divorce” required? The answer is a little complicated. While there is no such thing as a common law divorce, if a couple lives in a state that recognizes common law marriage, they’ll need to pursue a standard divorce like any couple who got married through traditional means.

What’s interesting about the concept of common law divorce is this: you may still have to get divorced even if you now reside in a state that does not recognize common law marriage. Let’s say a couple who lives in Texas has a legitimate common law marriage. They move to Massachusetts, a state that does not recognize common law marriage. Their marriage should still be valid under Article IV, Section 1 of the United States Constitution, also known as the Full Faith and Credit Clause. This outlines the duties of each state to recognize the “public acts, records, and judicial proceedings of every other state.” It then follows that they might need to get a divorce if they decide to end their common law marriage in Massachusetts.

Other Common Law Myths

Once you live together for seven years, you’re automatically considered married under common law. The seven-year standard often associated with common law marriage has no legal foundation. In fact, this arbitrary number has no known or recognized source. A couple may be considered married under common law if they’ve lived together for some time (maybe a year or more) and have taken other measures that show they’re married. This may include filing joint tax returns, assuming the other’s last name, presenting themselves as married, having children together, etc.

If a common law couple has a child, they must go through the adoption process to obtain parental rights. If a couple that’s considered married under common law has a child together, they have the same parental rights and responsibilities that any other married couple. The father, for example, would not have to go through the adoption process to claim the child as his own. The mother would not have to prove paternity to get support from the father. Their rights should apply as they would to a couple that pursued a traditional marriage.

If a common law spouse dies or is disabled, his or her spouse will be automatically entitled to benefits and assets. In the event of an accident or injury, a common law spouse may have to prove the validity of the marriage in order to claim benefits, inherit property, or make medical decisions on their spouse’s behalf. This can be challenging if the common law marriage was recognized in another state and the couple now resides in a state that does not recognize common law marriage. The disabled or deceased spouse’s family may try to claim the right to inheritance and to make medical decisions, and it will be up to the common law spouse to prove otherwise.

Common Law Marriage in Massachusetts

Massachusetts is one of many states that does not recognize common law marriage. This does not mean, however, that you’re out of options if you want to show your commitment without getting married. You can pursue a domestic partnership, which offers many advantages and protections. Or, if you moved from a state that recognizes common law marriage, you’re still considered married under the Full Faith and Credit Clause of the U.S. Constitution.

You can learn more by visiting our blogs on these subjects: Understanding Common Law Marriage in MA or Understanding Domestic Partnership in Massachusetts, or give us a call at (888) 874-2142 to talk about your situation, questions, and concerns. We at Miller Law Group, P.C. are committed to helping our clients understand their rights and responsibilities as spouses and parents so they can create brighter futures for themselves and their families. Contact us today!

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