There are many misunderstandings when it comes to common law marriage, especially in terms of what it is, the elements you need to satisfy to trigger this “marriage-like” status, and how you can get divorced under this union.
In general, divorce is stressful, complicated, and overwhelming for couples. It can be even more difficult when you are trying to figure out if your marriage is recognized in the state and what type of divorce is allowed, however.
This guide will tell you everything you need to know about common law marriage in Virginia and how you can keep the divorce process as simple as possible.
What is Common Law Marriage?
A common law marriage is a legally recognized union between a couple who lives together for a period of time and holds themselves out to family, friends, and the community as “being married,” but without ever actually getting a marriage license or having a formal ceremony.
Many people wrongly assume that a couple just needs to live together in order to have a common law marriage. There is actually much more to these requirements. Let’s dig into the details to create a better picture of how this process works.
What’s Involved in Common Law Marriage?
You and your partner need to meet the following requirements to qualify as having a valid common law marriage. Please note that several differ by state of residence, so it’s important to speak with your attorney about such elements and your rights.
You and your partner must live together.
To have a valid common law marriage, you and your partner must live together for a specific amount of time. This time limit varies by state, so it is important to check the rules in yours to determine if you have met the standard.
You and your partner must have a legal right or capacity to marry.
Under this second requirement, you and your partner need to be at least 18 years old. This age requirement may vary depending on the state. You also both need to have a sound mind and cannot currently be married to other individuals.
You and your partner intend to be married and hold yourself out to others as being a married couple.
You do not need a formal license to indicate you are married under a common law marriage, but you still need to hold yourself out as being married. This means you need proof that you intend to be married. This proof can include evidence of:
- Telling others you are married
- Using your partner’s last name
- Filing joint tax returns as spouses
- Signing documents as spouses
- Making joint purchases
- Having joint accounts
- Including your spouse on health insurance or life insurance forms
- Making joint loan applications
- Having children together
- Introducing your partner as your spouse to others and having others believe you are a married couple
No one factor can fulfill this requirement. Instead, your intention of being married will take into account all of your actions and how you portray yourself to be married.
Does Virginia Recognize Common Law Marriage?
It is important to understand that Virginia does not allow the creation of a common law marriage, but it does recognize it. This means you cannot acquire marital rights by living together and holding yourself out as being married in Virginia, but the state will recognize a common law marriage created in other states if the state of residence’s legal requirements have been met.
So, what do these requirements mean for a couple joined by a common law marriage in Virginia?
- If a couple is living together as husband and wife, their marriage’s validity should not be questioned.
- Legal action will be needed to dissolve a legal common law marriage.
- The Virginia courts will need to determine the rights of these parties.
- For purposes of inheritance or benefits of a pension plan, however, a valid marriage will be required.
As common law marriage in Virginia is a complicated topic. It is recommended you go over any questions related to your union with an experienced divorce attorney.
How Common Law Marriage Impacts Divorce or Annulment
If you and your partner have a common law marriage that was legally created in another state and decide you want to separate, you will still need to get a legal divorce. This is because a common law marriage is recognized in the state and you obtain benefits from this marriage.
To dissolve this common law marriage in Virginia, you will need to obtain a divorce just like any other traditionally married couple. This means the court will need to decide on certain aspects such as property division, child support, custody, and spousal support.
In Virginia, the divorce process includes:
- Filing a formal petition with the court
- Meeting the state’s residence requirements — living in Virginia for at least six months before filing
- If there are no children from the marriage, you need to be separated for at least six months and have a written property settlement before you file for divorce
- If there are children, you need to be separated for at least one year before filing
To better understand these divorce proceedings and what is required, make sure you speak to a skilled and knowledgeable Virginia divorce attorney that can walk you through the requirements and help ensure you complete the process correctly.
Questions about Common Law Marriage in Virginia?
If you and your partner are in a common law marriage, living in Virginia, and considering getting a divorce, you need experienced legal help before you take any action. Many unique questions arise with a common law marriage, especially if you are trying to determine if your union is permitted in the state.
Contact our firm today to speak with an expert divorce attorney about any common law marriage questions you might have.