WillI need a divorce if we are common law husband and wife?

UPDATED: Oct 6, 2010

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WillI need a divorce if we are common law husband and wife?

On 09/26/91 we went to court to change our son’s last name. We told the courts that we were common law husband and wife so the courts filed the papers reporting us as common law husband and wife. So do we need to get a divorce if we plan to marry someone else? We have been separated since 08/01.

Asked on October 6, 2010 under Family Law, Ohio


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

If your state recognizes common law marriage and you have fullfilled all legal requirements for such a marriage, then yes you will need to get divorced.  You can't re-marry of you are already married. However, it is not clear from the limited facts presented whether or not you have a true common law marriage (but the court you appeared in seemed convinced). At this point you really should discuss your situation directly with an attorney in your area.

 By way of background, common law marriage in OH was abolished effective 10/10/91.  Any persons who entered into a valid common law marriage before that date are still valid, but no couples could create a new common law marriage after that date. 


Note:  If parties entered into a valid common law marriage in another state and they moved to OH, Ohio will recognize the validity of a common law marriage that was established under the laws of the other state.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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