March 09, 2020

Do I Need a Divorce to End My Common Law Marriage in North Carolina?

Find out if you need a divorce if you want to end your common law marriage in North Carolina.

Common law marriage is an issue that can generate a lot of confusion. Despite the fact that just a handful of states recognize common law marriage, myths about common law marriage persist.

You might have even heard a friend or acquaintance claim that they’re “common law married” or have a “common law spouse” because they’ve lived with a boyfriend or girlfriend for several years. 

In reality, North Carolina doesn’t recognize common law marriage. In fact, just nine states and the District of Columbia have laws that make common law marriages valid under certain circumstances.

However, like most states, North Carolina will recognize a common law marriage that was validly created in the District of Columbia or one of the nine states that still has common law marriage as an option. 

Ending Your Common Law Marriage in North Carolina: You Must Get a Divorce

So what happens if you have a valid common law marriage in another state and then move to North Carolina?  What if you want to end your common law union? In that case, you must go through the divorce process just as you would if you and your common law spouse had been traditionally married. 

This can be an issue for couples who relocate to North Carolina from South Carolina, as South Carolina permitted common law marriages as recently as 2019. It wasn’t until 2019 that the South Carolina Supreme Court abolished common law marriage as protected by state statute. 

This means that anyone living in North Carolina who had a valid common law marriage in South Carolina prior to the court’s ruling will still need to get a formal divorce if they want to end their common law union.

Additionally, if you had a common law marriage in any of the states that still recognize common law marriages and you later moved to North Carolina, you must go through the formal divorce process if you wish to end your common law marriage. 

What Is a Common Law Marriage?

The concept of common law marriage has ancient roots, which might explain why many people still believe it’s a recognized practice in most states. Many people have heard of it but they don’t truly understand what it is.

A common myth around common law marriage is that you’re automatically “hitched” in a common law marriage if you live with a significant other for a certain period of time.

However, this is not the case. Rather, the handful of states that still recognize common law marriage have their own unique and specific rules for what qualifies as a common law marriage.

State laws vary, but most states that still allow common law marriages require the couple to cohabitate for a certain number of years and to both hold themselves out publicly as being married partners. 

Problems with Common Law Marriage 

In some cases, it’s actually quite difficult to get a union to qualify as an official common law marriage. The variety of rules around common law marriage can also be confusing, as most states require that both partners hold themselves out publicly as being married. 

As you might expect, this can become a problem if one person claims they held themselves out as married while the other person disputes this.

Because this exact scenario has happened in multiple states, many state courts and lawmakers have determined that it’s better to get rid of common law marriage and instead require couples to get formally married. That way, there are no legal battles over whether the couple was married under the common law or not. 

The states that still recognize common law marriage as of 2020 are:

  • District of Columbia
  • Colorado
  • Iowa 
  • Kansas
  • Montana
  • New Hampshire
  • Oklahoma
  • Rhode Island
  • Texas
  • Utah

Interestingly, while New Hampshire technically recognizes common law marriage, it only does so in the event one of the common law spouses passes away.

In other words, couples in New Hampshire can’t enter into a formal common law marriage during their lifetimes. Rather, the common law rule only kicks in when one spouse dies and the other spouse wants to make a claim on property they owned as a couple. 

Why Have Common Law Marriage at All?

Understandably, many people wonder if there are any benefits to having a common law marriage if you live in a state that allows it. Some people might prefer it over a traditional marriage because they want to protect their property rights without committing to a typical marriage.

However, common law marriages can be difficult to prove, and this can lead to prolonged legal battles and a lot of headaches. In the majority of cases, it’s easier to simply get married in the traditional sense. 

Discuss Your Case with a North Carolina Divorce Lawyer

If you are thinking about divorce, protect yourself by speaking to an experienced North Carolina divorce lawyer as soon as possible. 



Visit the Raleigh Divorce Lawyers 

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