Divorce And Common Law Marriages In Pennsylvania
Not many states in the United States still allow couples to form common law marriages. Common law marriages are marriages that were generally formed based only on the intent of the parties in the marriage, without the formal recognition by the state. These marriages were often frowned upon by courts because of their difficulty to prove if an issue arose as to the validity of the marriage.
In Pennsylvania, common law marriages were abolished in 2005, and only common law marriages that were formed before January 1, 2005, are valid as they were grandfathered in with the change of law. For couples that were married under common law before 2005, there are two main things that must be proven in order for the marriage to be recognized.
One, the couple must prove that they were had a present intent to be married at the time the common law marriage began. This means, they must have exchanged some type of vow to be married or words of intent to be married at the time the marriage began. Second, the couple must prove that both spouses had the capacity to marry at the time the marriage began. In addition, same-sex common law marriages that were entered into before January 1, 2005, are also recognized. There is no requirement that couples have cohabited for a period of time before they could be considered married under common law.
If a couple or one spouse can prove that they had a common law marriage before the 2005 change, then they can go through a divorce like any other married couple in Pennsylvania. This means that the court can make decisions regarding the division of property and custody of children.
A spouse who wants to avoid the proper division of assets with the other spouse in a common law marriage may deny the existence of the common law marriage. The spouse claiming the existence of the common law marriage has the burden of proving that the marriage existed and was legally existed before the law changed. It is not always easy to prove the existence of a common law marriage. Even if other people can testify that the couple have lived together and held themselves out to others as being married.
If property is legally jointly owned by both spouses through other legal means, proving the common law marriage may not be as much of an issue. This is assuming the couple is willing to give up rights to retirement accounts and other such assets. Similarly, rights to custody and visitation of the children born to common law spouses can be decided separately from the issue of whether the parents were married or not, as long as parentage or adoption can be proven.
Contact Us for Legal Assistance
If your common law marriage is over, and you are concerned about how you would get an equitable division of your marital property, you need to contact an experienced divorce attorney in Pennsylvania as soon as possible. Proving the existence of the marriage will be a key issue in your pursuit of an equitable share of the marital assets, and you will likely need the guidance of an attorney. For a consultation, contact Barbara Flum Stein & Associates in Media, Pennsylvania and serving Delaware County in all family law matters.