Common Law Divorce

Why Get a Divorce from a Common Law Marriage?

How does one know that they are in a common law marriage? Three criteria must be satisfied. First, both parties must have agreed to be married. Second, the couple must have acted as husband and wife either by introducing each other with the terms "husband" or "wife," filed a joint income tax return or in some other way made their "marriage" official. The third criterion that must be satisfied is that the couple must have lived as husband and wife. Merely living with a partner does not equal a common law marriage. All of the criteria must be satisfied. Obviously, this can lead to some confusion as to whether a couple is in a long-term relationship or married in a legal sense.

The fact is that many people live together as a husband and wife without ever being formally married. While this was less common twenty or thirty years ago, it is increasingly common now. "Common law marriage" extends the same protections to these situations as they do to regular marriages. Despite not having a marriage certificate or having been formally married, a couple can be legally married. The only way to dissolve the relationship legally is with a divorce.

Amassed Assets in Common Law Marriage

If a couple is in a common law marriage then there is a high likelihood that they have amassed some assets while they were together. With the breakdown of the relationship, these assets need to be dispersed fairly. In a common law divorce, the same procedures are followed as with a regular divorce. Both partners will be asked to form an agreement as to how the assets will be divided. In addition, any family debts that have been accrued will need to be dealt with appropriately. Both partners owe family debts therefore the repayments need to be divided accordingly. This process can become rather complicated depending on the amount of assets that have built up over time. Invariably the best way to deal with this part of the divorce procedure is to employ the services of a family law attorney.

Children & Common Law Marriage

Having children does not make a relationship a "common law marriage." The three criteria do still need to be met. If the criteria are met and there are children involved then part of the divorce process will be deciding which parent gets primary custody of the child or children. Though it is not always the case, custody, or conservatorship as it is also known, usually goes to the parent that has had the more active role in the child or children's upbringing. While both parents might have had an input, it is quite natural that one parent will take on a greater proportion of parental responsibilities than the other. Quite often, this is employment related. If one parent spends more time working than the other, it is natural that parent would have less time with their children. Unless there are exceptional circumstances, it would be unlikely to see custody granted to a parent that worked irregular hours or frequently traveled on business.

Custody Decisions

It is possible to dispute custody decisions and sometimes appropriate but one must remember that this can place a significant amount of stress on children. Stressful custody disputes have been linked to behavioral problems and in some cases, it has a detrimental effect on school performance. For these reasons, it is often better to try to find a degree of compromise. For the non-custodial parent, visitation rights are guaranteed in common law marriages just the same as conventional marriages. A visitation schedule will be arranged in order to ensure that both parents have reasonable access to their children.

Child Support in Common Law Marriages

In a common law marriage, the custodial parent will be eligible for child support and possibly spousal support. Child support rates are predetermined and must be paid by the non-custodial spouse. Child support is intended to assist the custodial parent with costs associated with raising a child. "Child support" should be paid until the child becomes an adult and it is enforceable by law. A family law attorney will be able to give an accurate estimate of child support amounts based on the income levels of both spouses. Spousal support is also a possibility depending on income level and length of marriage.

Protective Orders

If spousal or child abuse have been an issue in the relationship then it is possible to take out a protective order against the abusive spouse. Spousal abuse can have a significant impact on the distribution of assets and other aspects of the divorce. Children are extremely unlikely to be placed in the hands of an abusive parent and visitation rights could be severely curtailed.

Common law marriage involves the same legal arrangements as a regular marriage minus a marriage ceremony. Couples in common law marriages have joint assets, buy houses, take out loans and have children. For this reason, merely separating and going separate ways is an irresponsible option. The process of divorce takes care of dividing any of the assets and debts that have built up over the course of the marriage. More importantly, a divorce will help ensure that children are protected following the end of the marriage. A family law attorney will help to process the divorce quickly and painlessly and ensure that the divorce meets all of the legal requirements.

Please call us today at 281.210.0010 or complete our contact form and let us assist you with your legal need.

Smith & Garg LLC | 1095 Evergreen Circle, Suite 300 | The Woodlands, Texas 77380
Please call 281-210-0010 | Fax: 281-362-9757

Serving The Woodlands, Spring, Houston, Conroe, Kingwood, Tomball, Cypress, Huntsville, Cleveland, Stafford, Montgomery County, Harris County, Westchase, West Oaks, Memorial, Sugar Land, River Oaks, Alief, Stafford, Missouri City, and Southwest Houston Texas.

Copyright © 2008 Smith & Garg LLC. | All rights reserved. | Disclaimer | Resources
Website Design and Search Engine Optimization by Blue Sand Design