A common myth is that if you live with someone for seven years, then you automatically create a common law marriage. This is not true -- a marriage occurs when a couple lives together for a certain number of years (one year in most states), holds themselves out as a married couple, and intends to be married. Same-sex couples have the same rights to claim a common law marriage as any other couple.
Once a common law marriage is formed, that couple is treated legally the same way that traditional married couples are treated. This means that if the couple intends to no longer be married, they must file for divorce.
Only a certain number of states recognize this type of marriage. However, if you and your spouse have an informal marriage in one state and you move to a state that doesn't recognize common law marriages, the new state will recognize the marriage.
Which states recognize common law marriages?
While the states above allow couples to be considered married without a formal legal process, they have different requirements. Some states, such as Texas and South Carolina, recognize an informal marriage by statute, but other states have only court made determinations. Be sure to check the family laws in your state.
Does my common law marriage legally change my last name?
No, not automatically. Anyone can change their name, however, as long as the name change is for a legitimate, non-fraudulent purpose. If you'd like to change your name, simply begin using your new name consistently and change it for all of your accounts, memberships, and identification documents. Most private entities respect name changes via mere usage. With the threat of identity theft and fraud, however, fewer and fewer companies are willing to change your name without legal documentation of your name change.
When married through traditional marriage, you're given marriage records that suffice as proof of your new name. People married via common law, however, do not have marriage records. In this case, you'll need a court order documenting your name change. This documentation is helpful for proving to private entities, like banks, that you legally changed your name, but it is required by government entities to change things like your state issued I.D., passport, and social security card.
How do I get a common law divorce?
Technically, there is no such thing as a common law divorce. If you are in a legally-recognized informal marriage and you wish to end the relationship, you must obtain a regular divorce just like any other ceremonially married couple. Many spouses hire divorce attorneys, since you will need to have the court decide on things like child support and custody, spousal support, and property division.
If you were married by common law and move to a state that doesn't recognize them, you'll still have to obtain a legal divorce in that state, just as if you were ceremonially married. This is because of the fact that all states recognize marriages from other states. When you move to another state, you're still married, and must obtain a legal divorce if you choose to end the marriage.
Get Professional Legal Help With Your Common Law Marriage
There are several different scenarios in which state common law marriage laws will figure prominently, such as when couples move across state lines. For instance, you may be considering a divorce but don't know whether your union is legally considered a marriage in the first place. If you have questions about the marriage laws of your state, it's a good idea to contact an experienced family law attorney near you.