If you are in a valid common law marriage and want to end it, you need a regular divorce. There is no separate common law marriage divorce process, and there is no informal way out: a common law marriage carries the same legal weight as a ceremonial one, so the only thing that ends it is a divorce decree signed by a judge. Moving out, splitting the bank accounts, or telling everyone you’re done changes nothing about your legal status.
This surprises people. Couples who drifted into a common law marriage often assume they can drift out of one. They can’t, and the consequences of acting as if they can tend to appear at the worst possible moments: a second wedding, a tax audit, a hospital bed, a probate filing.
Separation Is Not Divorce
Once a common law marriage is validly formed, it is legally indistinguishable from a marriage performed with a license and an officiant. You have the same rights to property division, spousal support, inheritance, and government benefits as any other married couple, and the same obligations. A common law marriage validly formed in one state is also recognized in every other state, including states that don’t allow new ones to form. So if you established the marriage in Colorado and then moved to California, California treats you as married, and California is where you would file to divorce.
Because the marriage is real, the exit has to be real too. A judge has to end it.
What Happens If You Skip the Divorce
Walking away from a common law marriage without a divorce creates a cascade of legal problems.
A Second Marriage Can Be Void or Criminal
If you marry someone else while your common law marriage is still legally intact, that second marriage is void. In most states it also constitutes bigamy, which is a criminal offense. It doesn’t matter that you believed the first marriage had ended informally, or that you and your first spouse haven’t spoken in years. Until a court dissolves the marriage, you are still married, and entering another marriage while married is a crime in every state, with penalties ranging from misdemeanor to felony depending on the jurisdiction.
You May Still Be On the Hook for Their Debts
While you remain legally married, you may still be responsible for debts your spouse takes on. In common-law property states, debts incurred for household necessities or joint obligations can be attributed to both spouses even during a separation. A divorce decree is what formally separates your financial lives and cuts off future liability.
The IRS Still Considers You Married
The IRS considers you married until the year a final divorce decree or separate maintenance order is issued. If you are still legally married on December 31, you must file as married filing jointly or married filing separately, even if you have lived apart for years.1Internal Revenue Service. Filing Taxes After Divorce or Separation Filing as single when you are legally married is incorrect and can trigger penalties or an audit. The IRS recognizes common law marriages for federal tax purposes as long as the marriage was valid in the state where it was entered into, even if you have since moved to a state that doesn’t allow them.2Internal Revenue Service. Revenue Ruling 2013-17
Texas Has a Two-Year Clock
Texas has a rule worth flagging if you separated there. If neither spouse files a proceeding to prove the common law marriage existed within two years of separation, a rebuttable presumption arises that no marriage ever existed. It doesn’t automatically erase the marriage, but it shifts the burden of proof heavily against the spouse trying to establish it later. Waiting past that window can cost you the ability to claim marital property or spousal support.
Proving the Marriage Existed
Here is the wrinkle that makes a common law divorce harder than a standard one. Before a court divides anything, someone has to prove the marriage was real. In a ceremonial marriage the license settles the question. In a common law marriage there is no license, so the couple (or often just one spouse, when the other denies it) must present evidence.
This is where these cases get contentious. If one spouse wants the divorce and the other denies the marriage ever existed, the burden falls on the spouse claiming it to convince the judge. Courts weigh multiple types of evidence, and no single document is decisive. Documents that commonly help include:
- Joint federal or state tax returns filed as a married couple
- Insurance policies or retirement accounts naming the partner as a spouse or beneficiary
- Deeds, mortgages, or leases in both names, and joint bank accounts or credit cards
- A driver’s license or Social Security card reflecting a name change to match the other spouse’s surname
- Birth certificates listing both parties as parents of a child
- Sworn statements from the couple themselves and from friends, family, neighbors, or coworkers who regarded them as married
Witness testimony carries real weight, especially from people outside the couple’s inner circle. A landlord, employer, or neighbor who understood the couple to be married is more persuasive than a close friend. Occasional introductions as “husband” or “wife” at social gatherings, without a broader community reputation, have been found insufficient on their own to establish the holding-out element of the marriage.3Department of Labor. Common-Law Marriage Handbook
If both spouses agree the marriage existed, this step is straightforward. If one denies it, expect a contested hearing before the divorce itself can move forward.
What the Divorce Will Resolve
Once the court confirms the marriage existed, the case proceeds like any other divorce.
Property and Debt Division
The court divides marital property and assigns responsibility for marital debts. What counts as “marital” varies by state, but generally includes assets acquired and debts incurred during the marriage. Because the start date of a common law marriage is often fuzzy, disputes over when the marriage actually began can significantly change which assets are on the table.
Spousal Support
Either spouse may request alimony. Courts look at how long the marriage lasted, each person’s income and earning potential, age, health, and whether one spouse gave up career opportunities to support the household. Common law spouses have the same eligibility for spousal support as any other divorcing spouse.
Child Custody and Support
If the couple has children, the court establishes custody based on the children’s best interests and orders child support. This works identically whether the parents had a ceremonial or common law marriage. Parental rights don’t depend on the type of marriage.
Where to File
You file for divorce in the state where you currently live, not necessarily the state where the marriage was formed. Each state has its own residency requirement for divorce jurisdiction, typically ranging from a few weeks to a year. If you moved from a state that recognizes common law marriage to one that doesn’t, the new state will still process the divorce because it recognizes the marriage’s validity under interstate principles.
Court filing fees vary widely, generally ranging from about $70 to over $400. If cost is a barrier, ask the court clerk about a fee waiver before assuming you can’t afford to file.
Deadlines to Watch After the Divorce
COBRA: 60 Days
Divorce is a qualifying event under COBRA, which means a spouse covered under the other spouse’s employer health plan can elect continuation coverage for up to 36 months.4Department of Labor. FAQs on COBRA Continuation Health Coverage for Workers The deadline is tight: you must notify the plan administrator within 60 days of the divorce, and then the qualified beneficiary has another 60 days to elect coverage.5Centers for Medicare and Medicaid Services. COBRA Continuation Coverage Questions and Answers Miss those windows and the right to COBRA is gone.
The December 31 Rule for Taxes
Your marital status on December 31 controls your filing status for the whole year. If the divorce is finalized by that date, you file as single (or head of household if you qualify). If it’s still pending on December 31, you are still married for tax purposes.1Internal Revenue Service. Filing Taxes After Divorce or Separation Timing the finalization near year-end has real financial consequences worth talking through before signing.
The Social Security 10-Year Mark
If your common law marriage lasted at least ten years before the divorce became final, you may be eligible for divorced-spouse Social Security benefits based on your former spouse’s earnings record.6Social Security Administration. Code of Federal Regulations 404-0331 The Social Security Administration applies the law of the state where the couple lived to decide whether the marriage was valid in the first place.7Social Security Administration. Code of Federal Regulations 404-0726 Because a common law marriage often has an uncertain start date, whether you cross the ten-year threshold can depend on what a judge decides about when the marriage began. If you are close to that mark, this is worth raising with a lawyer before you agree to finalize.
One Boundary Worth Naming
All of this assumes you actually have a valid common law marriage. Living together for a long time, even for decades, does not create one in a state that doesn’t recognize the concept. Only a handful of jurisdictions currently allow new common law marriages to form: Colorado, the District of Columbia, Iowa, Kansas, Montana, Oklahoma, Rhode Island, Texas, and Utah.8National Conference of State Legislatures. Common Law Marriage by State Several other states abolished the practice but still recognize marriages validly formed before the cutoff date, so an older relationship established in those states can still be a legal marriage today. If you’re not certain your relationship qualifies, that is the first question to answer, because if there was never a marriage, there is nothing to divorce. And if there was, there is no way out but through the courthouse.