Crystal Wright | February 10, 2022 | Family Law

Does Georgia Recognize Common Law Marriage?

People talk a lot about common law marriage, but only a few states recognize them. The state of Georgia only recognizes common law marriages from before January 1, 1997. It also recognizes common law marriages entered into before this date are valid. The same is true of common law marriages from other states.

What is a Common Law Marriage?

There are two different types of marriage: common law and ceremonial. 

A common law marriage is a legally recognized union between two people who have never applied for a marriage license or had a state-certified ceremony. 

A court will usually recognize a common law marriage where:

  • The couple has cohabitated for a significant period 
  • The couple was acting married (like referring to one another as husband and wife or filing joint tax returns)
  • Each spouse intended to be married

Usually, common law married couples are those who act like a married couple and want to be married though they haven’t made it “official.”

Common law spouses in Georgia have all the legal rights afforded to ceremonially married couples, including:

  • The right to take your partner’s surname
  • The right to file joint income tax returns
  • The right to refuse to testify against your spouse in a criminal case 
  • The right to inherit from your spouse 
  • The right to request alimony or support payments after divorce
  • The right to an equitable division of property accumulated during the marriage

Common law spouses predating 1997 and from other states can rest assured that they will receive the same benefits as a ceremonially married couple while living in Georgia.

How Do I End a Common Law Marriage in Georgia?

Common law spouses in Georgia can go through the same divorce process as everyone else. 

This process usually includes:

  1. Filing a divorce petition that references the reason for divorce and lists the marital property
  2. Serving your spouse with the divorce petition
  3. Attending a parenting seminar (if you have minor children)
  4. Engaging in the discovery process
  5. Holding settlement negotiations and/or mediation
  6. Going to trial 

After reaching a settlement or going to trial, the court will issue a divorce decree finalizing the divorce. The decree also usually addresses issues related to divorces like child custody, child support, property division, and spousal support.

How Do Courts in Lawrenceville, Georgia, Divide Assets in a Common Law Divorce?

Some couples choose an uncontested divorce and agree to divide assets in a way that works for both parties. This is easy and can keep you out of court.

If the divorce is contested, courts in Lawrenceville use an equitable distribution model to divide property. Even though the court tries to divide the assets fairly, it doesn’t mean that it’s equal.

Determining Marital and Separate Property

The courts categorize all of the assets into two types: marital and separate property.

Separate property is what a spouse has before marriage. It also may include a few things they get while married, like gifts and inheritance. 

Marital property is the remaining property that each spouse gets during the marriage. This usually includes assets like:

  • The marital home and other real estate
  • Cars, boats, and vehicles 
  • Money in bank accounts and investment funds
  • Other miscellaneous personal property like art and furniture

Once the courts classify each piece of property, the judge divides it between the spouses based on several factors. These factors are largely subjective and include:

  • Each spouse’s respective financial needs
  • Each spouse’s individual earning capacity, health, age, and education
  • Each person’s financial and non-financial contributions during the marriage
  • The length of the marriage
  • Whether there was abuse or infidelity
  • If each party has separate assets
  • Tax consequences of the divorce and property division

Judges have a lot of flexibility and power with this model to award more or less property to a spouse as they see fit. This can have a big impact on spouses who contributed to the marriage in nontraditional ways and are worried about getting their fair share.

To learn more and get the help you deserve, call our divorce & family law firm at (404) 594-2143 or reach out to Crystal Wright Law online by visiting our contact us page.
You can also visit our law firm at 440 S. Perry Street Suite 105, Lawrenceville, GA 30046.