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Common law marriages are not the same as formal marriages because of the lack of a marriage certificate. For that reason, there is a widespread perception it is possible to divorce without many of the official processes in legal marriages. Common law marriages, though, are recognized in many states as official unions, so couples may still go through the same divorce processes as in a formal marriage.
There may not be any state records on how to treat the relationship, but a divorce is still the best way for people to exercise their rights. That is especially the case if one wants to remarry after separating from a partner in common law marriage. Division of resources and property will also follow the laws of the state. Nine states follow the community property system, which means resources are split equally between each spouse regardless of the investments or income of either party. Other states follow the equitable distribution option. The alternative means marital property is divided fairly according to each partner's contribution.
Considering the marriage is not formal, there are no required protocols for separating in these cases. Common law couples do not need a court order to make the separation official. However, separation processes can be quite complicated even if the couple is not legally married. It is advisable in most cases to enter a separation agreement. Such an accord aims to clarify each spouse's rights and obligations, such as child custody, access, spousal support, and property division. The issues covered in separation agreements are mostly the same as with legally married couples.
One can hire a family mediator if there is a problem in reaching an agreement. They may assist the couple to reach a consensus on child custody arrangements, visitation, spousal support, or division of assets and liabilities. The mediator should also assist the partners in navigating state law regarding the division of resources and obligations.
The state of Louisiana does not recognize common law marriages, so couples hoping to be legally recognized have to first go through the formal steps, including filing for a marriage license and getting the certificate. Common law marriages may only be recognized if they were set up in another state where they are considered formal unions. The perspective of common law marriages in Louisiana also affects the divorce process. Considering they are not recognized, the community property laws do not apply. Married couples must split their assets down the middle regardless of income or available resources. In Louisiana, common-law couples cannot impose these regulations.
New Mexico does not also recognize common law marriage or cohabitation. It only recognizes domestic partnerships if the parties had an agreement in another state before moving there. In so doing, the couple will have to prove they lived together for an extended period and were perceived as married in a state that approves common law marriage. Couples in New Mexico cannot go ahead with a divorce without a license.
According to South Dakota laws, common law marriage is not recognized unless consummated before 1959. That being said, it does consider common law unions that were validly established in another state which recognizes these marriage types. However, a spouse is eligible for certain rights to following a common law marriage in South Dakota. They are entitled to spousal health benefits or life insurance upon death.
The state of Arizona does not recognize common-law marriages. Cohabitation does not initiate the presumption of marriage as well. That means couples cannot end their relationship using the typical divorce process in the division of property. Arizona courts may recognize an implicit contract between two partners, depending on the circumstances. If one creates a pattern of sharing in getting things or routinely dealing with debts, one can be sued for a share of the implied obligation.
Tennessee does not recognize common law marriage, except if the couple was joined in a state that recognizes this union. If a couple establishes a common law marriage in a state that recognizes this option, they can move to Tennessee, which will be considered formal. The courts in Tennessee, though, have severally utilized other methods to hold the partners to obligations even if they were in informal marriages.
South Carolina is one of the states that does not allow for common-law marriage. Previously it was recognized, though this is no longer the case, per Stone v. Thompson, 426 S.C. 291 (2019). However, the court decision is still a prospective one. That means the courts can still recognize common law unions entered into before 2019. Similarly, for the courts in South Carolina, if one wants to uphold a common law union from another state, the partners should be over the age of 16 and have no existing marriages. They also cannot be relatives.
In Wisconsin, common law marriage or cohabitation was abolished in 1917, so it is not recognized. That is regardless of how long the partners have lived together. That can make the division of marital property, alimony, and child support tedious. Wisconsin is also a community property state on resource divisions. Though, as it does not consider common law marriages, parties cannot argue this during splits if they did not get an official marriage license to recognize the marriage initially.
Nevada abolished common law marriages in 1943. It does not matter how long the individuals cohabitate. Interestingly, though, a person that is 16 or 17 years may get married provided it is with the consent of one of their parents. As Nevada does not consider common law marriages, if cohabitating couples break up, the division of property and liabilities is covered under civil rather than family court cases.
The state of Florida does not consider common-law marriages. Florida also does not consider common law unions legally considered by other states. One has to obtain a marriage license from a specific county, and a judge or religious leader should officiate it. Florida also follows an equitable distribution program, meaning a 50-50 split during a divorce. Since common law marriages are not viewed as legal in Florida, equitable distribution does not apply.