Splitting Property After a Common-Law Marriage

In most states, divorce laws don’t apply to couples not formally married

Reviewed by Erika RasureFact checked by Suzanne KvilhaugReviewed by Erika RasureFact checked by Suzanne Kvilhaug

Like formally married couples, partners in a common-law marriage may have property that they own jointly and separately. But what happens when common-law couples split? Laws that govern divorce don’t usually apply to unmarried couples—unless the partners live in a state that recognizes common-law marriage. In these cases, the property is divvied up the same as it would be for formally married couples.

Key Takeaways

• In states that recognize common-law marriage, property is divided the same way whether you were married formally or under common law.
• There is no such thing as a “common-law divorce.” If the couple lives in a state that recognizes common-law marriage, they pursue a standard divorce as a formally married couple would do.
• There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
• The remaining states are equitable distribution states, where assets accumulated during a marriage are divided fairly, though not necessarily equally.

What Is Common-Law Marriage?

In most states, couples who want to tie the knot must buy a marriage license and solemnize the marriage via a ceremony. However, a small number of states recognize common-law marriage, which extends many of the same benefits as marriage without the traditional license and ceremony requirements.

There’s a common misconception that you become married under common law if you and your partner have lived together for a certain amount of time (seven years is what many people believe). However, this is not true anywhere in the United States. Instead, the conditions for common-law marriage generally require partners to file their taxes jointly, have joint bank accounts, and represent themselves as a married couple (aka “holding out” to others).

Which States Recognize Common-Law Marriage?

While the conditions vary, it’s possible to enter a common-law marriage in eight states: Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. Another six states—Alabama, Florida, Georgia, Indiana, Ohio, and Pennsylvania—recognize common-law marriages established before a specific date (when the state abolished them). And in two states—Oklahoma and Rhode Island—case law has upheld common-law marriages.  

Marital Property and Separate Property

When it comes to married couples, there are two types of property: marital and separate. In general, marital property is everything that either partner earned or acquired throughout the marriage. Separate property, on the other hand, belongs only to one spouse. While the rules vary by state, separate property typically includes:

• Property owned by either spouse before the marriage or after a legal separation
• Property acquired during the marriage in one spouse’s name and not used for the other spouse’s benefit
• Property that both spouses agree in writing is separate
• Gifts or inheritances received by one spouse during the marriage
• Pension proceeds that vested before marriage
• Some personal injury awards

Community Property vs. Equitable Distribution

Property in a marriage is considered either marital or separate, but something else determines who gets what in a divorce: your state’s marital property ownership system. There are two systems: community property and equitable distribution.

Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin are community property states. All assets and debts acquired during marriage are joint property in these states and will be divided equally if the couple divorces.

All other states follow the equitable distribution (aka “common law”) system of property ownership. In these states, any assets and earnings accumulated throughout marriage are divided fairly, though not necessarily equally.

Alaska, South Dakota, and Tennessee have elective community property laws that allow couples to opt in to this type of property division.

Splitting Property After a Common-Law Marriage

Once you and your partner form a common-law marriage (according to your state’s rules for doing so), you are treated legally the same way as formally married couples. That means you must file for divorce if you no longer intend to be married. Like formally married couples, spouses by common law often hire divorce attorneys, especially if a court is needed to decide property division, child support, and the like.

If you live in a state that recognizes common-law marriage—and you meet that state’s requirements for proving a common-law marriage—then property is divided the same way as if you were formally married. For couples who live in a community property state, that means assets and debts will be divided straight down the middle (currently, Texas is the only community property state that recognizes common-law marriage). In all other states, your assets and debts will be divided fairly, though not necessarily equally.

Which States Recognize Common-Law Marriage?

Eight states currently recognize common-law marriage: Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. Another six states—Alabama, Florida, Georgia, Indiana, Ohio, and Pennsylvania—recognize common-law marriages formed before the state abolished them. In addition, case law has upheld common-law marriages in Oklahoma and Rhode Island.

How Do You Divide Property After a Common-Law Marriage?

There is no such thing as a “common-law divorce.” If a common-law marriage can be proved, then the property is divided the same as it would be for a formally married couple seeking a divorce.

Which States Are Community Property States?

Nine states follow the community property system: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Alaska, South Dakota, and Tennessee have elective community property laws that allow couples to opt in to this type of property division. All other states follow equitable distribution.

Who Gets the House in a Divorce?

That depends on the circumstances. If a judge finds that the house is one spouse’s separate property, then that spouse will get the home. Otherwise, a judge can award both spouses a share of the home. This usually means that one spouse must buy out the other or that the home will be sold, with the proceeds divided as directed by the court.

The Bottom Line

There is no “common-law divorce.” In states that recognize common-law marriage, these couples go through divorce just like people who were formally married. Keep in mind that couples who go their separate ways can divide their property any way they want if they can come to a compromise and not involve the court. Otherwise, the state’s system of property ownership (community property or equitable distribution) determines how assets and debts are divided.

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