While a common law (or informal) marriage does exist there is no such thing as a common law
divorce. If you believe you are married then you must file for divorce, by contacting a family law attorney, just as a couple who obtained a license to be married and had a marriage ceremony.
What does exist is the following:
If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and
ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.
What this means essentially says is that if a divorce (or any other proceeding where you want to prove a marriage existed) is not done before the 2nd year after separation it is presumed that a
marriage did not exist. However, if you can prove all of the elements in the Common Law Marriage document on this website, you can overcome that presumption and still proceed with
obtaining a divorce. You should speak to an attorney if you believe that you at one point and wish to legally end that relationship.
“Property possessed by either spouse during or on dissolution of marriage is presumed to be
community property.”
The above statement essentially means that any property acquired during the marriage by either spouse is presumed to be community property. Any = Everything! Cars, Houses, Salary,
Investments, Retirement, Pets, Furniture, EVERYTHING! This also means debts incurred by either spouse are presumed to be community property. Credit cards, Mortgages, Loans, Loans to Family, ALL DEBTS!
Despite the EVERYTHING statements above, there are exceptions as listed below:
1. Property owned prior to marriage is separate property.
2. Property inherited by one spouse during marriage is that spouse’s separate
property.
3. Property gifted to one spouse during marriage is that spouse’s separate
property.
4. Income from separate property remains separate property.
5. Proceeds from the sale of separate property remain separate property.
However, within these exceptions comes the ability to prove that these exceptions apply because as stated above, any property acquired during the marriage is presumed to be community property.
When a divorce proceeding is initiated, and the parties cannot reach an agreement on their property, the court will divide the property based on a “just and right” division of property. This does not mean 50/50 as it will depend on numerous factors as to what the court determines is just and right. However, if you can PROVE that property was your separate property, it will not be part of the just and right division because it is solely your property.
There are many other factors that come into play when discussing community property and separate property and you should seek out the advice of an attorney if you are considering a divorce.