Do I need a divorce if we were common-law married?
If you formed a valid common-law marriage, you are married, and the only way out is a divorce. There is no such thing as a common-law divorce. The harder question is the first one: whether you were ever common-law married at all, because most people who believe they were are wrong.
The seven-year rule is not a rule
Living together for seven years does not marry you. Neither does ten years, or having children, or calling each other husband and wife casually. That myth is the single most repeated falsehood in this area and it has no basis anywhere.
Where common-law marriage exists, it generally requires all of these at once:
- Legal capacity to marry - both of you unmarried to anyone else, of age, competent.
- A present agreement to be married, right now, not a plan to marry someday. This is the element people miss.
- Living together.
- Holding yourselves out publicly as married - joint tax returns, calling each other spouse to family and institutions, shared surname, insurance and beneficiary forms.
No time period is required in most of these states. A couple can meet the test in a year and another couple can fail it after twenty.
Only a handful of states still create them
As of 2026, new common-law marriages can be formed in Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, and Texas, plus the District of Columbia. New Hampshire has a narrow rule that operates only after one partner dies, not a way to become married while both are living.
Utah is different in kind, and it is on a clock. Nothing you do there makes you married on its own; a court has to recognize the relationship, and someone has to ask it to, either while you are still together or within one year after the relationship ends. Utah is also closing the route: no petition can be filed on or after May 5, 2027. If you are in Utah and counting on a relationship a court has never recognized, that is a reason to see an attorney now rather than at separation.
Several states abolished it recently, and the cutoff dates matter enormously: Alabama stopped recognizing new ones on January 1, 2017, and South Carolina on July 24, 2019. A relationship that met the test before the cutoff generally stays a marriage; the same relationship starting after it is not one.
The rule that catches people who moved
Every state must recognize a common-law marriage that was validly formed in a state that allows them. So a couple who became common-law married in Texas and then moved to New York is married in New York, and would need a New York divorce.
This works in the other direction too, and it is where the surprises live. People who lived together for years in a state with no common-law marriage do not acquire one by moving to Texas. And couples who spent time in a common-law state without realizing what they were doing sometimes discover, years later and often in probate or a benefits claim, that they married by accident.
If you were married, the divorce is a normal divorce
Property division, spousal support, custody, the residency requirement, the waiting period - all of it works the way it works for anyone else. The only extra step is that you may first have to prove the marriage existed, which becomes its own contested issue when one person wants out cleanly and the other wants the protections of marriage.
Evidence that carries weight: joint tax returns filed as married, deeds and leases naming you as spouses, insurance and retirement beneficiary designations, affidavits from people who knew you as a couple, and anything where you told an institution you were married.
Timing is part of the proof, and waiting can turn a provable marriage into a losing one. In Texas, if nobody starts the case within two years of the separation, the law presumes there was never an agreement to be married at all, and you are left arguing against that presumption.
If you were not married, you are in a different world
No property division, no spousal support, no marital-estate anything. What you have instead are ordinary civil claims - your name on a deed or an account, a partition action for jointly owned property, sometimes a contract theory. If there are children, custody and child support are decided exactly as they would be for any unmarried parents; those rights come from parentage, not marriage.
That gap is why the threshold question is worth real legal advice rather than a guess. The difference between "we were common-law married" and "we lived together a long time" can be the difference between half the house and none of it.
Which states create common-law marriages, what proof they require, and what the cutoff dates are in states that abolished them are all state-law questions, and this is an area where being slightly wrong is expensive. If you think you may be common-law married - or that your ex will claim you were - talk to a licensed family-law attorney in your state before assuming either way.