Do I have to get a divorce and why? 8 Answers as of August 28, 2015

We were living together for pretty much 10 years. We have two children together. We have never been married officially, never signed anything at the courthouse or anything. The only thing we have done is filed taxes for the past 4 years as married. It isn't working out anymore and he moved out. Do we have to get a divorce?

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The Law Office of Kimberly D. Moss
The Law Office of Kimberly D. Moss | Kimberly Moss
Yes, based on what you describe, you need a divorce. Holding yourself out as married to the federal government by filing taxes as married would likely place you into the category of someone who is common law married. Also, because you have children with this man, a divorce would give you the opportunity to make sure you receive a proper amount of child support for your children as well as your fair share of any community property you may have accumulated. I recommend a consultation with a local divorce attorney to talk about your specific circumstances.
Answer Applies to: Texas
Replied: 8/28/2015
Diane l. Berger | Diane L. Berger
If you live on a state that recognizes common law marriage yes.
Answer Applies to: Nebraska
Replied: 8/28/2015
Walpole Law | Robert J. Walpole
I would actually recommend that you do file for divorce but there are complications and one important reason why you have to file something. That one reason you have to file something is your children. You need a custody, visitation, and child support schedule. And what about any property or debt incurred in your names? In fact if there is property and debt, you would proceed as if the two of you were in a joint venture. Now as to whether you can or should file for divorce the actual answer may depend upon which state you reside. It is my understanding that only one or a few states acknowledge and allow common law marriages. Since you did not have a formal wedding, i.e. procured a wedding license, if you don't live in Oklahoma or another state that allows a common law marriage, you may not be able to file for divorce. For your information, in Oklahoma a common law marriage has three components: 1) intent to be married; 2) consummation; and 3) holding yourself out to the public as being married. One factor indicating intent to be married is filing income tax returns as being married. There is a very good reason why you should get a divorce. That is the Social Security Administration will consider the other spouses income if a marriage lasts over ten years. That extra benefit, especially for a woman because it is well known that women's pay is less than men's, can come in handy in your later years. And you are on the cusp of having been married for ten years. Good luck.
Answer Applies to: Oklahoma
Replied: 8/25/2015
Law Office of Martin A. Kahan | Martin A. Kahan
You cannot get a divorce if you are not married. The bigger problem is your filing of tax returns as married!
Answer Applies to: California
Replied: 8/25/2015
The Gufford Law Firm, P.A.
The Gufford Law Firm, P.A. | Joseph Gufford
Florida does not recognize common law marriages unless the parties were married by way of common law in another state. It does not sound to me like you meet the requirements for a valid marriage in Florida. So, in my opinion, I don't believe that just because you held yourselves out as Husband and Wife, that you actually were Husband and Wife. That being said, I think you need to file an action for Paternity, Parental Responsibility, Child Support and Other Relief so that the issues associated with your children can be addressed.
Answer Applies to: Florida
Replied: 8/25/2015
    Richard B. Jacobson & Associates, LLC | Richard B. Jacobson
    Only if your state recognizes common law marriage. But a court action could be helpful, for example. -in allocating responsibility for debt between the two of you. And allocating property. Consult an experienced family law attorney in your locality.
    Answer Applies to: Wisconsin
    Replied: 8/24/2015
    David A. Browde, P.C.
    David A. Browde, P.C. | David Browde
    There is no legal requirement that you get a divorce.
    Answer Applies to: New York
    Replied: 8/24/2015
    Law Offices of Arlene D. Kock
    Law Offices of Arlene D. Kock | Arlene D. Kock
    If you never actually got married, there's no legal justification to proceed with the divorce. It sounds as if you should be filing a petition for paternity to establish parental rights and request child support and parenting orders.
    Answer Applies to: California
    Replied: 8/24/2015
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