Is Divorce Possible in IL if You Have a Common-Law Marriage?

 Posted on February 26, 2025 in Divorce

As of 2022, only eight states still recognized common-law marriages (Colorado, DC, Texas, Iowa, Oklahoma, Kansas, Rhode Island, and Montana), while Utah and New Hampshire had "limited recognition" of common-law marriage. Common-law marriage has not been valid in Illinois since 1905, and while technically, Illinois law says common-law marriages from another state will be recognized, in practice, that is much less likely.

Common-law marriage from another state is unlikely to be recognized in Illinois without overwhelming evidence that it exists. Since that "overwhelming evidence" can be difficult to produce – even in a state that allows common-law marriages – a couple now living in Illinois may struggle to know how divorce works for a marriage that is not legally recognized in the state.  

If you have a common-law marriage from another state and are now living in Illinois, it is extremely important that you speak to a knowledgeable Arlington Heights, IL family law attorney. Determining parenting time, spousal support, and the division of "marital" assets can be complex when the marriage may not be recognized as valid, and a strong legal advocate can make all the difference in the outcome.

How is Common-Law Marriage Established in States That Allow It?

The rules for establishing a common-law marriage in one of the states that allow this type of marriage include:

• The couple must live together in a state that currently recognizes common-law marriages.
• The couple may file joint tax returns indicating they are married.
• The couple must live together for a specified number of years, usually seven years or more.
• Neither party can be legally married to anyone else. 
• The couple must consistently introduce themselves to neighbors, friends, family, and co-workers as a married couple by saying "my husband" or "my wife" or even by using the same last name.
• There must be at least some level of joint finances, including a mortgage in both names, joint bank accounts, or joint credit cards.  

How Do Couples Divorce in a Common-Law Marriage?

If the couple lives in a state that recognizes common-law marriages, they will divorce in the same way as any other married couple. One spouse will file for divorce, and either the couple or the court will determine parental responsibilities, parenting time, spousal support, child support, and how marital assets will be divided. In other words, divorce in a common-law state is handled exactly like a divorce for a married couple is handled.

What about a common-law marriage in Texas, followed by a move to Illinois, where the couple decides to divorce? Illinois does not have legal asset protection for cohabitants, which is how the law looks at those in a common-law marriage. In very rare circumstances, if a couple in a common-law marriage from another state can prove they meet the requirements of common-law marriage in that state, they can potentially obtain a legal divorce in Illinois.

This would include proving the common-law marriage, then asking the state to divide "marital" assets, determine parental responsibilities, and award spousal support. Unfortunately, a spouse in a common-law marriage who is looking at paying spousal support or losing half of the marital assets can assert there was never a common-law marriage, and this can be difficult to disprove.

Contact a Rolling Meadows, IL Divorce Lawyer

If you and your common-law spouse are considering divorce, speak to a highly skilled Arlington Heights, IL divorce attorney from Law Offices of Donald J. Cosley as soon as possible. Attorney Cosley personally handles every aspect of his cases. When you call with questions about your case, you will speak to attorney Cosley rather than being passed off to a subordinate. Call 847-253-3100 to schedule your free consultation.