Before you can divorce from common law marriage, you have to prove that you were indeed married in the first place. Just because you were living with your spouse doesn't mean that you were married in the eyes of the law. Here are specific criteria you must meet to satisfy the requirements of a common law marriage:


Each state has its age of consent, the minimum age at which you may legally get married. The age of consent ranges from 16 to 18. For example, the age of consent in Texas is 17 (except with parental consent). Therefore, if you started living together with your spouse at the age of 16, the state will not recognize your common law marriage.

Holding Out

In addition to meeting the age threshold, you must have held yourself as a married couple to the public for the state to recognize your common law marriage. This means the public should look at your behaviors and conclude that you are married. There are different ways of proving this requirement, but many states use the common ones that include:

  • Testimonies from friends, employers, and colleagues who knew you were married.
  • Objective records, such as loan applications forms, income tax returns, and property deeds.
  • Using the same last name
  • Wearing wedding rings.

Duration of Cohabitation

Depending on your state, you may be required to cohabit for a period before your common law marriage can be recognized. For example, New Hampshire requires you to live together and act as a married couple for three years before it recognizes your marriage. Therefore, if you wanted to "divorce" after living together in New Hampshire for two years, think again. You still have one year to go before your marriage can be recognized, and it's only after that you can seek a divorce.

State Recognition

Lastly, you must meet all these requirements in a state that recognizes common law marriage. Only a few states will allow you to form a common law marriage; some states do not recognize them. The good news is that once you form a common law marriage in a state that recognizes it, your marriage will be accepted in all states. An example will suffice.

Suppose you met all the requirements of common law marriage in Colorado (that allows the marriage). You can then move to California, and it will recognize your marriage since you instituted it in a state that allows it. However, you can't form a common law marriage in California itself; the state will not recognize it.

Do you have questions about your common law marriage? Do you want to divorce and are wondering whether it will be recognized or not? Consult a divorce lawyer to have all your questions answered. 

For a divorce attorney, contact a law firm such as Eschbacher Law