Marriage can be a complicated process and there are many different ways couples tie the knot. One way to get married is through a common law marriage. Unraveling the ties of a marriage is often a complex and emotionally charged process but does the process change when you have a common law marriage? Common law marriages are uncommon, so keep reading to learn more about them, and if the process of divorce from common law in Illinois.
To learn more about traditional family law and divorce check out this article entitled “Family Law vs Divorce in Illinois.”
Common Law Marriage
Unlike a traditional legal marriage, which is solemnized through a marriage ceremony and legal documentation, a common law marriage is established through cohabitation and mutual intent. While Illinois does not create common law marriages, they will recognize a common law marriage Often, these couples are considered “married” when they:
- live together for some amount of time (some jurisdictions say 7 years but this is not standard across the board)
- file taxes jointly
- have children together
- assuming a last name
It is important to know that not all states have laws allowing common law marriage. There are only nine states that have common law marriage, such as: Texas, Iowa, Utah, Colorado, Kansas, Oklahoma, Rhode Island, Montana, and New Hampshire.
While not all states let you marry through common law, like in Illinois, every other state will recognize common law marriages as any other marriage. Known as the “Full Faith and Credit Clause”, Article IV section 1 of the United States Constitution requires other states to recognize rulings and records from every other state in the Country. If you have a valid common law marriage in one of the states where common law marriages are recognized, then other states will recognize your marriage.
Divorce From Common Law in Illinois
As couples increasingly opt for cohabitation without the expensive formal wedding ceremony, understanding the complexities of divorce from a common law marriage becomes crucial. Luckily the answer is not too complicated. Because common law marriages are treated as normal marriages from the perspective of the courts, a common law divorce is exactly the same as a normal divorce proceeding. The main difference will be that you might not have the same documents as a couple who was married through more traditional means.
When a couple gets married through a court or a church, they receive a marriage certificate that must be shown during normal divorce proceedings (if you get divorced). Lacking these documents can make the initial set up difficult. While you can get through divorce proceedings alone, help from competent legal counsel will ensure the process moves as smooth as possible. To learn more about representing yourself in family court check out “How To Represent Yourself In Family Court in Illinois.”
Common Law Divorces Out of State
Clients often ask us if “Moving Out of State Before Divorce is Final” is a good idea. If the divorce process has already started, then moving can add some complications, especially if you have a common law marriage.
As mentioned above, not every state has laws allowing couples to enter into a common law marriage. So what happens if you have a common law marriage from one state and want a divorce after moving to another state that doesn’t allow it? Luckily this answer is also fairly straightforward. Because every state must recognize common law marriages from other states, they also treat these marriages the same as any other. You can file for a divorce just like any other married couple even if you’re in a state that doesn’t allow common law marriages.
Just like the section above states, you will not have the same documents as other married couples, but the process would be the same, who can be subpoenaed in a divorce case would be the same, etc. Every state would then have to recognize your divorce as official because of the “Full Faith and Credit Clause.”
Conclusion
While Illinois does not allow couples to enter into a common law marriage, there are ways to get a divorce from common law in Illinois. Through the “Full Faith and Credit Clause,” every state will allow couples with a common law marriage to request a divorce through court proceedings. Couples might not have a marriage license, or other common marriage related documents, but the process will still be the same. One spouse, the petitioner, can file their dissolution of marriage with the court and serve their spouse, the respondent, to begin divorce proceedings. It is always important to talk with a qualified family law attorney to ensure you have all necessary documents before filing for divorce.
MEET WITH AN ILLINOIS FAMILY LAW ATTORNEY TODAY
The Family Law attorneys at Koth Gregory & Nieminski understand that your family is the top priority, which is why we offer SAME-DAY APPOINTMENTS. If you need a divorce or other family law services, you can schedule your first meeting through our online appointment calendar. We look forward to meeting you.
Disclaimer: This article (Divorce From Common Law in Illinois) may contain information that is outdated as Illinois law continuously evolves. Meeting with an experienced family law attorney is the best way to ensure you are receiving the most current information about Divorce From Common Law in Illinois.
Published by Dustin Koth on January 25, 2024
