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Common Law Divorce: Myths Debunked

As more states begin to adopt into their laws the notion and recognition of common law marriage, naturally the notion of divorce is also going to appear. The U.S has an alarmingly high rate of divorce, and those of the same sex who are joined in matrimony are no exception. In some states, individuals can live together for a particular number of years and will be recognized by the state as “married,” even if they’ve  never had a legal wedding ceremony. Therefore, when those couples split up, it’s necessary to receive a common law divorce. By understanding the basics of common law divorce, individuals can learn how to obtain one.

Full Faith & Credit Clause
FFAC is the name usually given  to Article IV, Section 1 of the United States Constitution. This Clause addresses the duties that states within the United States have to respect the “public acts, records, and judicial proceedings of every other state.” The clause’s application to state recognized and legal, same-sex marriages, civil unions, and domestic partnerships is however, unresolved, and so too is its relationship to the 1996 Defense of Marriage Act (DOMA) and the proposed Federal Marriage Amendment. As of the present, 39 states passed laws and constitutional amendments that define marriage as consisting solely of a man and a woman. Most explicitly prohibit the state from honoring same-sex marriages performed in other states and countries

Obtaining a Common Law Divorce

Now, even though there are some states that do not legally recognize common law marriages, there are states that do, all under certain circumstances. Only eleven states in the U.S. have provision for common law marriages, so unless you live or previously lived in one of those states with your partner under the conditions described by that state’s laws for the formation of a common law marriage, you’re not legally married and thus don’t have to file for divorce. Once a couple has been recognized as married through the common law marriage, they must obtain a divorce in exactly the same way a legally married couple would. They will have to petition the courts to work out issues such as child custody, division of assets and property.

Many hear “Common Law” and automatically think that the divorce process will be different for divorce amongst same sex couples. The opposite is true of this. In fact, obtaining legal certification of marriage between same sex couples is far more difficult than dissolving a marriage. This is due to the fact that many states simply do not legally recognize the act. There are so many myths and falsities floating through the subject of this, and to set the record straight, is to say that divorce, no matter who the spouses are, is entirely the same.

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