Common Law Marriage - Frequently Asked Questions
Authored By: Legal Aid Services of Oklahoma, Inc.
A common law marriage occurs when a couple lives together for a certain amount of time, holds themselves out as husband and wife, and intends to be married. Once a common law marriage is formed, that couple is treated legally the same way that traditional married couples are treated. This means that if the couple intends to no longer be married, they must file for divorce.
Only a certain number of states recognize common law marriage. However, if you and your spouse have a common law marriage in a state that recognizes common law marriages and you move to a state that does not recognize common law marriages, you are still legally married in that new state.
Which states recognize common law marriages?
- Alabama (if created before January 1, 2017)
- District of Columbia
- Georgia (if created before January 1, 1997)
- Idaho (if created before January 1, 1996)
- New Hampshire (for inheritance purposes only)
- Ohio (if created before October 10, 1991)
- Pennsylvania (if created before January 1, 2005)
- Rhode Island
- South Carolina
Does my common law marriage legally change my last name?
No, not automatically. Anyone can change their name, however, as long as the name change is for a legitimate, non-fraudulent purpose. If you'd like to change your name, simply begin using your new name consistently and change it for all of your accounts, memberships, and identification documents. Most private entities respect name changes via mere usage. With the threat of identity theft and fraud, however, fewer and fewer companies are willing to change your name without legal documentation of your name change.
When married through traditional marriage, you are given marriage records that suffice as proof of your new name. People married via common law marriages, however, do not have marriage records. In this case, you will need a court order documenting your name change. This documentation is helpful for proving to private entities, like banks, that you legally changed your name, but it is required by government entities to change things like your state issued I.D., passport, and social security card.
How do I get a common law divorce?
If you are in a legally-recognized common law marriage and you wish to end the relationship, you must obtain a regular divorce just like any other ceremonially married couple. Many spouses hire divorce attorneys, since you will need to have the court decide on things like child support and custody, spousal support, and property division.
If you were married by common law marriage and move to a state that does not recognize common law marriages, you will still have to obtain a legal divorce in that state, just as if you were ceremonially married. This is because of the fact that all states recognize opposite-sex marriages from other states, including common law marriages. When you move to another state, you are still married, and must obtain a legal divorce if you choose to end the marriage.