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

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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

Answers:

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

Answered 11 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.

 


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