A common law relationship is one in which you live together without getting legally married. These persons n law relationships have similar entitlements to spousal and child support and custody and access but very different entitlements to property, very different entitlements should one spouse die, and very different entitlements to the home in which you both live together.
If you have been living together for three years or more, or if you have had a child together (natural or adopted) you may qualify to receive spousal support from your spouse in the event of separation. If your common law spouse does not agree to pay support if you need it, then you can go to court to let a judge make an order for support.
Relationship
In all cases, whether unmarried, married, or not living together, you are entitled to request support for any child resulting from your relationship no matter how long that relationship may have been. Children have the right to support from their parents regardless of the relationship of the parents. A parent in a common law relationship has the same rights to child support as a parent in a marriage. Sometimes it can be consider to common-law relationship in the family law context to solve issues. Custody and access issues are also determined in the same fashion for unmarried couples as for married couples.
The biggest difference between a cohabitation relationship and a marriage relates to property division. Unmarried couples do not have the right to divide the increase in the value of property between them. For instance, if the common law wife has a pension worth $5000 when the couple start living together and then throughout the relationship her pension increases in value to $100,000, the common law husband will not be entitled to share in the increase in the value of the pension. Married couples share in the increase in value of such assets.
In addition, a common law spouse does not have the right to remain in a home upon separation if it is owned by the other common law spouse. This is very different than the automatic right of both married couples to remain in the matrimonial home upon separation.
Spouse from Common Law
If a common law spouse dies without a Last Will and Testament setting out what he wants to happen to his property upon death, the surviving spouse is not entitled to any of the deceased spouse's property without going to court to fight for it. All property owned by the deceased common law spouse will automatically go to blood relatives. All Cohabitation spouses should each have a Will that says whom they want their property to go to if one of them dies.
If you and your common-law spouse are considering a divorce, it is best to consult attorneys for family law, as they will be able to explain in better detail the steps needed. The short answer is yes, common-law spouses can get divorced... but they may not need to. The hitch is in how officially you declared your marriage and if you are actually common-law married. Texas is one of only a few states that still allow the practice of common law marriage. It was started in a time when the population was more sparse and those wanting to get married didn't always have access to a minister or judge. In order to know if you need a divorce, first establish that you are actually married.
Separation from Common Law
Although the notion sounds strange, you must actually know that you are common law spouses before you will legally be required to divorce each other in order to split. One of the ways to officially marry is to go to the county courthouse and both complete and sign a dated certificate, then swear in the presence of a county clerk that you are married. You can always consult attorneys for family law to see if you did this step, if you aren't sure. If you did, then the state has on record an official document supporting your marriage. If this is the process you and your spouse chose, the state requires that you go through a legal divorce process in order to go your separate ways. It is considered a binding agreement and can not be dissolved, other than through legal means.
The other way to be common law married is a bit trickier and harder to prove in court. It requires four steps. Attorneys for family law will most likely be needed to determine if you and your spouse qualify for this method. Many cases need to be proved in court before a divorce can be sought, as it can be hard to prove if one of you denies any of the steps. First, you have to be over the age of 18. Second, you have to both consider the same residence your primary home. Third, you must present yourselves to others as being husband and wife. Lastly, you have to both consider yourselves married.
Trouble comes when two people want to go their separate ways and ones tries to file for divorce, but the other claims they never believed they were married. It can be difficult to prove, but attorneys for family law are adept at rooting out the truth and could help. They will look for anything to prove the case. If you both took out a loan, purchased land, filed taxes, or took out an insurance policy together and listed each other as spouses, it could be proof of a marriage. Likewise, if you have promoted yourselves as married to other people, and they believe you are married, it could be grounds to support the bond. The last thing to prove is the date of common law marriage, which for this method is the date by which all four steps were complete. Finding a date can be tricky, but a good attorney can help.
In order to protect yourself from ambiguity in the law's eyes, it is smart to attempt to take a legal step. If you both do consider yourselves married, then the process of completing the document and swearing to be married could be right for you. If you want to assure that you could never be considered married, you might want to look into a legal agreement not to be married. If this is the right step for you, consult attorneys for family law to walk you through the proper steps, so that in the case of disappearance or death by either party, everyone knows the true intentions of the couple.
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