Family Law

Common Law Marriage and Divorce: Do I Have to Pay Alimony?

By Joseph Pandolfi, Retired Judge
Find out whether alimony is available after a common law marriage.

Is Your Relationship Considered a Common Law Marriage?

That depends on a number of factors, including where you live. Today, very few states recognize common law marriage. If you reside in a state that authorizes common law marriage, you’d have to check your state’s laws to learn the specific requirements. However, the following elements are fairly standard:

  • you need to have the intent to be married—in other words, you must consider yourselves married.
  • you must meet your state’s general marriage requirements (for example, being at least the minimum age to marry, and being of sound mind), and
  • you have to hold yourselves out to the public as married—there are various ways to accomplish this, some of which are: taking the same last name; referring to each other as “my spouse”; and, opening joint bank accounts.

There is no universal set time period during which you must live together. Any such requirement would vary on a state-by-state basis.

Common Law Marriage and Alimony

If a court determines that your relationship constitutes a common law marriage, you can’t simply walk away if it ends. The fact that you don’t have a marriage certificate is irrelevant. Marriage is marriage, whether traditional or not. And that means the only way for you and your partner to legally part ways is through a divorce, where you will be subject to all the divorce laws in your state, including laws governing property division and alimony.

The law holds common law spouses to the same standards as traditionally-married spouses in having to prove that their situation warrants an alimony award. Each state has a different set of factors judges can consider when making decisions about spousal support, but some standard considerations include:

  • each spouse's income
  • the length of the relationship
  • the supported spouse's need for financial assistance
  • the paying spouse's ability to pay, and
  • both spouse's earning capacities.

Depending on where you live, a court may be able to consider additional, special circumstances, such as a partner having a debilitating medical condition that prohibits the ability to work. All of these items will form the basis for the judge’s decision as to whether alimony is justified, how much should be awarded, and how long the support should continue.

Although alimony is a common concept, note that the requirements for determining spousal support can vary from state to state. It’s important to check your particular state’s laws on the subject.

Seeking Alimony After Crossing State Lines

For the most part, if a court in one state determines that your relationship is a legal common law marriage, other states will honor that finding. That includes states that don’t themselves authorize common law marriage. So, assuming you meet the residency requirements, filing for divorce and seeking alimony in another state shouldn’t be an issue.

But if a court never previously decided your marital status, the situation could become problematic. This is even more likely if you move from a common law marriage state to one that doesn’t acknowledge that marital status.

Let’s say your relationship started in Colorado—a state that authorizes common law marriage. The two of you then moved to New Jersey, which doesn’t. Unfortunately, things are no longer working out between you, and you want a divorce.

You may be able to divorce in New Jersey, but only if a New Jersey judge determines that your relationship—while you lived in Colorado—met that state’s requirements for a legal common law marriage.

This is a potential quagmire, because proving the elements of a common law marriage isn’t easy. You’ll have to provide evidence of all those conditions referenced in this article’s opening section. This will undoubtedly entail presenting correspondence and other documents to back up your claim. And perhaps even more difficult, you’ll probably have to call witnesses—from Colorado—to attest that you held yourselves out as married while you resided there.

You’d have to do all this before starting the regular divorce process (including an alimony request). So it’s easy to see how legal fees and anxiety levels could ratchet up quickly.

If You Disagree on Your Marital Status

Often, one partner wants a divorce with the possibility of alimony and/or property, and the other wants to avoid that. In this case, no matter what state you’re in, you’re going to end up in court asking a judge to determine whether you’re legally married.

As an aside, if a judge decides that no common law marriage was created, some states, including California, provide another method of requesting support, often referred to as a claim for "palimony." This generally requires proof that the romantic couple lived together (at least part time) and had an implied or written contract which provided for financial support in the event of a separation.

Divorce and alimony within the context of a common law marriage can be complex. If you have questions about these issues, consider consulting a local divorce lawyer for advice.

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