Can You Divorce Your Common Law Spouse in Florida?

 Jake Pillsbury
 March 14, 2023

Before last week, I’d have answered this question with a simple, “no”. Section 741.211, Florida Statutes explicitly states, “No common-law marriage entered into after January 1, 1968, shall be valid…”.  The title of the section is “common-law marriages void”.  It seems cut and dry.  However, in typical lawyer fashion, my answer today is, “it depends”. 

Florida’s Stance

Florida Courts recognize common-law marriages or “informal marriages” in two specific scenarios:

1.     A marriage before January 1, 1968, which met Florida’s definition of common-law marriages at the time; or

2.     A common-law marriage created in a different State where informal marriages were legally recognized at the time the marriage began. 

For obvious reasons, marriages from before 1968 are becoming less common (eighteen-year-olds informally married in 1967, are 73-74 years old at the time this article was published).  As pre-1968 common law marriages are legally recognized, those seeking a divorce for one of the few remaining can do so in Florida’s family Courts. In order to do so, a person must be able to prove Florida residency and all the legal elements necessary to establish an informal marriage at the time the marriage began. This type of divorce takes just one more step than a standard divorce, but requires a substantial amount of additional work by the attorney. If you’re in this rare scenario, you should hire a competent family law attorney to counsel you through the process.  As in any divorce, a single misstep can be catastrophic to the case.

States still recognizing common-law marriage

As of the date this article was published, several American jurisdictions continue recognizing common-law marriages in varying ways.  Those states are:

1.     Colorado

2.     Iowa

3.     Kansas

4.     Montana

5.     New Hampshire[1]

6.     Oklahoma

7.     Rhode Island

8.     South Carolina[2]

9.     Texas

10.   Utah[3]

11.   District of Columbia

The laws of these states and their requirements for proving the existence of a common-law marriage are different. It is important to identify which facts a person needs to prove to establish an informal marriage before seeking legal benefits.  An attorney licensed in each of the above-listed states is a great place to start. 

Getting that common law divorce in Florida

Florida law recognizes any marriage legally created under the laws of the above-listed states as required by the Full Faith and Credit Clause of the U.S. Constitution.  Accordingly, people in legally-created common-law marriages are entitled to spousal rights including: spousal death benefits; inheritance; spousal healthcare decision-making authority; and the right to divorce/partition shared assets.  Unfortunately, divorcing a common-law marriage from another State creates a complex issue for the Court. First you will have to prove the existence of the marriage under the laws of the originating state.  Then you will need to establish jurisdiction of the Florida Court before even beginning the process of dissolution of the marriage.  Finally, the spouse seeking divorce may be required to initiate the process in the state where the marriage began, or seek a declaration from the originating state regarding the existence of the marriage. 

When this situation arises, you should discuss your options with attorneys from both jurisdictions, or finding a family law attorney who is licensed in both states.  If you have any questions about common-law marriage or Florida Divorces, use the link above to request a free consultation. 


[1] New Hampshire recognizes common law marriages for the purpose of probate only (providing death benefits and inheritance).

[2] South Carolina stopped recognizing new common-law marriages in 2019. 

[3] Utah recognizes marriages without a marriage ceremony, but the marriage must be ratified by court order.