A divorce is necessary to end a common law marriage if the two spouses want protection under the law related to their assets (including the protection of community property), as well as any child support or child custody agreements. However, the couple may avoid the expense of divorce if a proceeding to establish the common law marriage is not brought within two years after the couple separates and stops living together. However, although the couple may deny a common law marriage from existing, proof may be shown that indicates the couple was living together and holding themselves out to be husband and wife.
Most cases of common law divorce occur when one spouse wishes to be entitled to a fraction of the marital estate or other benefits which marriage affords both parties. An individual may also unintentionally enter into a second marriage if they did not fully end a prior common law marriage, leading to potential criminal charges. It is important to consider all the facts of a common law marriage prior to entering into a marriage or ending the marriage.
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