Common Law: Separation Agreement

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If your marriage is legally recognized as a common law marriage by your state, you can terminate it only through divorce. If you're not ready for divorce, you can instead choose legal separation if your state provides this option. With either separation or divorce, you have the option of drafting a separation agreement, also known as a marital settlement agreement, with your spouse. In this agreement, you and your spouse will outline your agreed-upon arrangement for property division, alimony and custody.


Only nine states and the District of Columbia recognize common law marriages. Five others, including Georgia and Pennsylvania, recognize them if entered into before a particular date. Generally, your marriage will be recognized as a common law marriage if it was entered into by mutual agreement, you and your spouse lived together, and represented yourself to the public as married. If you happen to live in a state that doesn't recognize common law marriage, you and your spouse will still be able to obtain a divorce in that state if your common law marriage was entered into and legally valid in a state that recognizes such marriages. However, if the court finds a common law marriage does not exist in your case, you will not be able to submit a separation agreement to the court and obtain a divorce because a legally valid marriage does not exist.

Property Distribution

States divide property based on one of two standards: community property and equitable distribution. Under the community property system, the court will divide marital property between you and your spouse equally. However, under the equitable distribution system followed by a majority of states, marital property is divided between spouses based on what is fair and just under the circumstances, which may result in an uneven split. If you don't want to leave this decision up to the court and risk an uncertain outcome, it is best to make this decision together and outline the specifics in your separation agreement. Generally, you can divide property in whatever manner you like or not at all.


Although sometimes known by different names, both legal and physical custody are recognized by all states. Legal custody refers to a parent's right to make important decisions concerning a child's care and upbringing, such as schooling, medical treatment and religious affiliation. Physical custody represents where a child lives. Oftentimes, when left up to the court, legal and physical custody may be awarded to one or both parents. When a court awards only one parent physical custody, the other parent is usually granted visitation rights and must pay child support to the other parent. In your separation agreement, you must outline whether you and your spouse will be sharing legal and physical custody or whether either will be held by one parent only. You should be as detailed as possible, discussing days and times each parent will spend time with the child, transportation arrangements, vacation and holiday schedules, how decisions will be made and disagreements resolved, and so on. Since the court bases its custody decisions on what is in the best interests of the child, it will keep this in mind when reviewing your agreement.


If you and your spouse have reached an agreement concerning alimony, outline these terms in the separation agreement. If you wish for the terms to be modifiable in the event that circumstances change in the future, due to job loss or remarriage for example, include language to that effect. In some states, alimony established pursuant to a separation agreement cannot later be changed unless this language is included.

Divorce Decree

Once you and your spouse have drafted your separation agreement, you must submit it to the court for review. If the court finds the terms acceptable, it will approve the agreement and incorporate it into the divorce decree, making it a legally enforceable court order. If not, the court will likely ask you to make certain changes or make them for you. If you and your spouse are unable to reach an agreement on one or more marital issues, the court will decide these matters for you. Once the decree is issued, your common law marriage is effectively terminated.