Common Law Divorce

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Common law divorce is another type of dissolution of a marriage. It does not differ from the statutory divorce, even if the common law relationship varies from that of normal marital relationship in many ways. Common law marriage need not undergo the process of formal ceremony of taking oaths in front of witnesses. Also, there would be no registration of marriage in the government office. However, these type of marriages are recognized in some states as valid marital relationships.

Common Law Divorce in different states

A romantic partnership between two persons for a specific period of time is considered as a Common Law Marriage by the court. Such a Common Law Marriage is recognized in the following states in the U.S.

  • Washington, D.C.
  • Utah
  • Texas
  • South Carolina
  • Rhode Island
  • Oklahoma
  • New Hampshire
  • Montana
  • Kansas
  • Iowa
  • Colorado
  • Alabama

Some couples opt for a common law marriage and then find that it has failed. Such couples then pursue a common law divorce. The states in which a common law marriage is not recognized, common law divorce cannot be pursued. In such states, it is considered that the couple was never married. In short, their marriage is taken as an annulled marital union that was void by law.

In those states where common law marriage is recognized, the couples residing together for a specific span of time have legal rights identical to the couples who have undergone a traditional marriage. Such couples who have undergone common law marriage can apply for a common law divorce. The common law divorce has a divorce procedure that is similar to the divorce process of a traditionally married couple.

Notion regarding Common Law Divorce

Several people assume that common law divorce is identical to common law marriage. These people are of the opinion that if they have an intention of divorce and reside separately for a specified period of time, then, the law would regard them as divorced. This concept of common law divorce is completely mistaken. No state in the U.S. follows this procedure. If the spouses are regarded as legally married by the rules of common law marriage, then, they have to complete the traditional divorce procedure like custody, child support, alimony and division of property.

Process that is recommended for couples opting for divorce

Prior to filing for a common law divorce, it is advised that the following options should be tried by a couple opting for divorce.

  • The partners must attempt property division and division of other assets in such a way that both are satisfied. They can opt for a marital settlement that is carried out on the basis of mutual discussion.
  • The spouses should plan out a childcare arrangement. It is advisable to have a parenting plan before opting for a divorce in the court.
  • The couple must hire the services of a mediator, if the major decisions between the parties are not sorted through mutual negotiations. The mediator, in such cases can resolve the issues pertaining divorce in a short span of time. Also, the mediation services are cheaper than the expenses incurred for a contested divorce.

Procedure of Common Law Divorce

Those couples who do not have children or property may file for a common law divorce on their own without any assistance from a divorce lawyer. Such couples need to contact the local court clerk and find out details regarding filing a petition for divorce. It is necessary to get acquainted with the divorce laws in that particular state. Also, the residency requirements should be fulfilled as mentioned in the divorce laws. No case of divorce shall be entertained in the court if residency requirements are not met by either of the spouses. It is compulsory to pay a court fee and furnish the following information:

  • Names of both spouses and all proofs of identification of both parties.
  • List of all the marital property and debts which is known as disclosure of the marital assets.

After the petition is filed, the court clerk will give a copy of the petition and the court summons to the petitioner.

If the divorcing couple has children or marital property, then, it is advisable to approach a divorce lawyer and follow the attorney's instructions.

These are the procedures to be followed for common law divorces. The spouses, who have opted for common law marriages, have to remember that a statutory divorce is the only option for them. Therefore, the legal divorce procedure must be studied thoroughly before applying for common law divorce.

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