To get out of a common law marriage, you have to file for divorce in court, just as you would to end any other marriage. There is no informal exit. Moving out, splitting up your things, and going your separate ways does not end the legal relationship. Until a judge signs a divorce decree, you remain married for purposes of property, debt, taxes, and the right to remarry. What makes a common law divorce different is not the process itself but a preliminary step: convincing the court that the marriage existed in the first place.
Confirm Your Marriage Is Legally Recognized
Only about ten jurisdictions currently allow new common law marriages to form: Colorado, Iowa, Kansas, Montana, New Hampshire (limited to inheritance situations), South Carolina, Texas, Utah, Rhode Island, Oklahoma, and the District of Columbia.1National Conference of State Legislatures. Common Law Marriage by State If your relationship was validly formed as a common law marriage in one of these places, most other states will honor it under choice-of-law rules that treat a marriage valid where created as valid elsewhere, unless it violates the second state’s strong public policy.
Texas has a timing rule that catches people who assume they can wait. If neither spouse files to prove the common law marriage within two years of separating, Texas law presumes no marriage existed. That presumption can be overcome with evidence, but it makes the case significantly harder. If you live in a state that recognizes common law marriage and the relationship is over, don’t sit on it.
Build Your Proof That the Marriage Existed
Before a court can grant your divorce, it has to agree the marriage was real. A marriage certificate does that work automatically in a ceremonial divorce. Here, you have to prove it, and if your partner denies the marriage to protect assets, this becomes the hardest fight in the case.
Elements vary by state, but courts generally look for a combination of the following:2U.S. Department of Labor. Common-Law Marriage Handbook
- Legal capacity. Both people were of legal age and not already married to someone else.
- Agreement to be married. Both intended to be spouses, not just partners.
- Cohabitation. You lived together consistently. No state sets a minimum number of years.
- Holding out. You presented yourselves publicly as married.
- Reputation. People in your life actually believed you were married.
Holding out and reputation are where the strongest evidence usually comes from. Courts weigh whether you named each other as spouses on insurance or employment benefits, filed joint tax returns, opened joint bank accounts, used the same last name, or referred to each other as husband or wife. Testimony from friends, family, landlords, and coworkers who understood you to be married carries real weight too.
Start gathering this material before you file. Texts, emails, social media posts, and signed documents are harder to dispute than verbal recollection alone. If you expect your partner to deny the marriage, a strong paper trail assembled in advance gives you a meaningful advantage.
Where You Can File
Every state requires at least one spouse to have lived there for a minimum period before a court will accept a divorce filing. These residency periods range from as little as six weeks to a full year, and many states add a separate county-level requirement of 30 to 90 days.
If neither of you still lives in the state where the marriage was formed, you file where one of you now resides, as long as that state’s residency requirement is met. The court will apply the law of the state where the marriage was formed to decide whether it was validly created.
Paperwork, Financial Records, and Filing Fees
The case begins with a petition for dissolution of marriage, the formal request asking the court to end the marriage. Most state and county court websites offer the forms as free downloads. You will need the full legal names and current addresses of both spouses to complete it.
Before you file, put together a full financial picture:
- Assets, including real estate, vehicles, bank and investment accounts, retirement funds, and valuable personal property.
- Debts, including mortgages, car loans, credit card balances, student loans, and any other outstanding obligations.
- Income records, meaning recent pay stubs, tax returns from the past two to three years, and any self-employment records.
- Children’s full legal names and dates of birth.
- Your evidence that the common law marriage existed.
Court filing fees for divorce vary widely but generally fall between $70 and $435. A process server to deliver the papers to your spouse typically adds another $65 to $145. Most courts offer fee waivers for people who can show financial hardship.
Serving Your Spouse and What Happens Next
After filing, you must formally deliver copies of the papers to your spouse through a process called service. You cannot hand them over yourself. Courts require proof of delivery, which usually means hiring a professional process server or arranging service through the sheriff’s department.
Once served, your spouse has a limited window, usually 20 to 30 days, to file a formal response with the court. The response tells the court whether your spouse agrees with the petition, contests the existence of the marriage, or disputes specific terms like property division or custody.
If Your Spouse Doesn’t Respond
If your spouse ignores the papers and misses the deadline, you can ask for a default judgment. The court notes that service was proper and no response came, and the divorce can proceed without your spouse’s input. In practice, the court can approve the terms you proposed in your petition, including property division, custody, and support, without ever hearing the other side.
A default judgment can sometimes be reopened, but the bar is high. The non-responding spouse generally has to show a legitimate reason for missing the deadline (a serious medical emergency, for example), a valid basis for contesting the divorce terms, and prompt action once they learned of the default. Hoping the case would go away is not a valid reason.
If You Cannot Find Your Spouse
Common law marriages often end after long separations, and locating your spouse may not be simple. If you genuinely cannot find them, courts allow service by publication. First you conduct a diligent search: their last known address, their relatives, public records and online databases, their last known employer. You file an affidavit documenting every step.
If the judge is satisfied you’ve exhausted reasonable options, the court authorizes a legal notice of the divorce in a newspaper, typically running once a week for three consecutive weeks. After the publication period and a waiting window, the court can proceed without direct contact with your spouse.
Mediation Instead of Court Battle
A common law divorce doesn’t have to be a fight in front of a judge. Mediation puts a neutral third party between you and your spouse to negotiate a settlement covering property, support, and custody. The mediator doesn’t decide anything; they guide the conversation toward an agreement both sides can live with.
The practical advantages are real. Mediation typically costs far less than a contested divorce because you avoid trial preparation and extended attorney fees. You set your own schedule instead of waiting months for a court date. And people generally comply with agreements they helped shape.
A mediated agreement isn’t final until a judge reviews and approves it. Once approved, it becomes a binding court order with the same force as a trial judgment. Mediation works best when both spouses will negotiate in good faith. If your spouse is hiding assets, denying the marriage, or if there’s a history of domestic violence, mediation may not be appropriate.
Dividing Property and Debts
Once the court accepts that a common law marriage existed, it divides assets and debts as it would in any divorce. The first task is separating marital property from separate property. Marital property is generally everything acquired between the date the marriage was established and the date of separation, regardless of whose name is on the title. Property one spouse owned before the marriage typically stays separate.
Appreciation in separate property gets more nuanced. If a home one spouse owned before the marriage rose in value purely because of the market, that passive growth usually stays separate. If it rose because of the other spouse’s efforts, such as renovations, the portion of growth attributable to those efforts can be marital property subject to division.3Legal Information Institute. Marital Property
How the court actually splits everything depends on where you live. The large majority of states (41 plus the District of Columbia) use equitable distribution, meaning a judge divides property in whatever way seems fair. Fair doesn’t always mean equal; courts weigh the length of the marriage, each spouse’s earning capacity, and each person’s financial and non-financial contributions. Nine states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) use community property, though the rules within that group aren’t identical. Some require a strict 50/50 split; Texas calls for a “just and right” division that can look more like equitable distribution in practice.4Justia. Community Property vs Equitable Distribution in Property Division Law
Spousal Support
A court can order one spouse to pay support to the other after a common law divorce, using the same standards that apply to any marriage. Support is not automatic. Judges look at the length of the marriage, the income and earning capacity of each spouse, the standard of living during the marriage, whether one spouse gave up career opportunities for the household or children, the age and health of each spouse, and how property was divided overall.
A short marriage between two people with comparable earning power is unlikely to produce a support order. A longer marriage where one spouse left the workforce for years is a different situation. Support can be temporary, designed to help one spouse become self-sufficient, or longer term. Courts retain the ability to modify support later if either spouse’s financial situation changes significantly.
Custody and Child Support
Children born during a common law marriage receive the same legal protections as children from any other marriage. The parent married to the birth parent at the time of birth is legally presumed to be the child’s parent, and custody and support usually proceed without a separate paternity case. If the marriage itself is disputed, or if one parent was not married to the birth parent at the time of birth, parentage may need to be established through a voluntary acknowledgment or a court order first.
Courts decide custody using the best-interests-of-the-child standard, adopted by every state either by statute or judicial precedent. Judges consider each parent’s relationship with the child, the child’s ties to school and community, each parent’s mental and physical health, any history of domestic violence, and in some states the child’s own preferences if they are old enough to express a reasonable one.
Child support is calculated through state-specific formulas that account for both parents’ incomes, the number of children, the physical custody split, and expenses like health insurance and childcare. The resulting order is binding. Failing to pay it can lead to wage garnishment, seizure of tax refunds, suspension of driver’s licenses, and, in extreme cases, jail time.
Tax Consequences to Plan For
Ending the marriage triggers federal tax issues that catch people off guard. Working through them before the decree is signed can save real money.
Filing Status the Year You Divorce
Your filing status for the entire year depends on your status on December 31. If the divorce is finalized at any point during the year, you file as single (or head of household if you qualify) for that entire tax year. If the divorce isn’t final by year-end, the IRS still treats you as married, and you file jointly or married-filing-separately.5Internal Revenue Service. Filing Taxes After Divorce or Separation
Property Transfers Between You and Your Spouse
Transfers between spouses as part of a divorce settlement are not taxable events. Federal law treats them as gifts, so no one owes capital gains tax at the time. But the receiving spouse inherits the original cost basis, meaning the price the property was originally purchased for plus qualifying improvements. When that spouse later sells, taxes will be owed on the gain measured from that original basis, not from the property’s value at the time of the divorce.6Office of the Law Revision Counsel. 26 USC 1041 – Transfers of Property Between Spouses or Incident to Divorce
Selling the Home
If you sell the marital home as part of the divorce, each spouse can exclude up to $250,000 in capital gains from federal taxes, as long as you meet the ownership and use tests (owning and living in the home for at least two of the five years before the sale). Couples who sell before the divorce is finalized and file jointly for that year may qualify for the combined $500,000 exclusion instead.7Office of the Law Revision Counsel. 26 USC 121 – Exclusion of Gain From Sale of Principal Residence
If one spouse keeps the home and the other moves out, the departing spouse can still count the time their ex uses the home under a divorce decree as their own use period for the exclusion, which preserves eligibility even after moving out.7Office of the Law Revision Counsel. 26 USC 121 – Exclusion of Gain From Sale of Principal Residence
Joint Tax Debts and Innocent Spouse Relief
If you filed joint returns during the marriage and your spouse underreported income or claimed improper deductions, the IRS holds you both responsible for the full amount, even after divorce. A divorce decree assigning the tax debt to your ex has no effect on the IRS; the agency can still collect the full balance from either of you.
If you didn’t know about the errors, you can file IRS Form 8857 requesting innocent spouse relief. The IRS will evaluate whether you qualify for full relief, separation of liability (paying only your share), or equitable relief. You generally must file within two years of receiving an IRS notice about the audit or the taxes owed. Special provisions may apply if you signed the return under duress or threat of domestic violence, even where you knew about the errors.8Internal Revenue Service. Innocent Spouse Relief
Social Security and the Ten-Year Rule
A common law marriage that lasted at least ten years entitles a divorced spouse to claim Social Security benefits based on the ex-spouse’s earnings record. You must be at least 62, currently unmarried, and not entitled to a higher benefit based on your own work history. You also must have been divorced for at least two years if your ex has not yet filed for benefits.9Social Security Administration. Code of Federal Regulations 404.331 – Who Is Entitled to Wife’s or Husband’s Benefits as a Divorced Spouse
The ten-year mark matters more than people realize because the start date of a common law marriage is often disputed. If your relationship is anywhere near that threshold, nailing down the earliest defensible formation date is a financial decision, not just a legal one. The Social Security Administration recognizes common law marriages that were valid under the law of the state where they were formed, even if you’ve since moved to a state that doesn’t recognize them. Claiming on an ex’s record does not reduce their benefit or affect a current spouse’s benefits, and many people leave money on the table simply because they don’t know they qualify.