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December 22, 2016

Do We Have to Go Through the Divorce Process to Dissolve a Common Law Marriage in SC?

Divorce attorney in Greenville SC

There is a lot of confusion concerning the legality of common law marriage and whether or not such marriage must go through the divorce process if the relationship dissolves. Many states no longer recognize common law marriages, but some still do, and South Carolina is among them. However, it is not as simple as being together for a long time. You could be with your partner for decades and never be in a common law marriage, or you could be with your partner for a week (or even less), and still have your relationship recognized as a marriage. It all depends on the variables of your relationship.

How is a Common Law Marriage Defined in South Carolina?

In order for your relationship to be considered a common law marriage in South Carolina, you must live with your partner, though there is no specific timeline required. Rather than living together for a set period of years, you simply have to live as though you are married, represent yourself as married to others, and meet a few key requirements. You don’t have to have a ceremony, and you don’t have to have a marriage license or any other paperwork to do this. The requirements that have to be met include being legally free to marry (not already married), being at least 16 years of age, making an agreement with each other and having the mutual intention of being married, live together for any period of time, and represent yourself as married to society.

Can a Common Law Marriage Be Dissolved by Common Law Divorce in South Carolina?

There is actually no such thing as a common law divorce, and once you are in a common law marriage, your marriage is recognize by the law. Thus, if you wish to separate, you do have to go through the legal divorce process in South Carolina. Your common law marriage has all of the legal weight of any other marriage, and you will face the same concerns during a divorce. The division of assets and possibility of spousal support will be just as relevant for you as for any other married couple.

What About Divorce in Common Law Marriages Involving Step Children in South Carolina?

Many traditional marriages and common law marriages involve step children from previous relationships. Because the two forms of marriage are equal in the eyes of South Carolina law, the issues concerning step children are the same. However, in any case, the law usually does not address the relationships with step parents and step children in any marriage. There are special situations in which visitation can be ordered, but this uncommon and is based on the psychological and emotional needs of the child, which must be beyond that of any ordinary situation.

In the end, the thing that determines whether or not you are able to maintain a relationship with your stepchildren is your willingness to do so and the willingness of the child and the legal parents. A study from the Missouri College of Human Environmental Sciences discovered that whether or not a step child remains close with a step parent is largely dependent upon that child’s legal parent’s attitude towards the continuing relationship. Roughly half of all step children in the study considered their step parents to be family, just as much as any blood relative. Yet, only half of those actually continued their relationship after the divorce of their legal parent from their step parent. Again, it was largely related to the attitude of their legal parents to the continuation of such a relationship. In most cases, step children will not continue a relationship with a step parent unless their legal parent encourages it.

If you are in a common law marriage, involving step children, that ends in divorce, then the statistics that apply to traditional marriages that involve step children apply to your situation as well. You may have been in an active role in the lives of the child or children for many years, but you will not have a legal right to them. Many step parents choose to go through a step parent adoption during the marriage, whether it is a traditional marriage or a common law marriage. However, this means that the biological parent must be willing to sign off rights and allow the adoption.

Even so, most couples who are in common law marriages are less inclined to initiate such legal step parent adoption proceedings, just as they are not inclined to go through the traditional marriage process. In any event, whether or not you are able to continue a relationship with your step children will come down to how much effort you care to put into it, how well you can get along with your ex spouse, and whether or not your ex spouse encourages the relationship.

Learn More About Divorce After a Common Law Marriage in South Carolina

You can learn more about divorce to dissolve a common law marriage by contacting an experienced South Carolina divorce attorney, Lauren Taylor. You can set up a free consultation and get answers to all of your questions as well as advice on how to move forward with your divorce.