Common Law Marriage and Uncommon Divorces

Posted: 5 July, 2023

Nevada is known as a place to go for a fairly quick divorce. The catch is, you need to be legally married in order to get a legal divorce.  You may think you have a “common law” marriage, but if you reside in Nevada, you don’t.  Divorce lawyers know only 11 states currently recognize common law marriages, and Nevada is not one of them. 

What is Common Law Marriage?

A common law marriage is generally defined as one where the state provides couple’s rights and benefits of being married, even though they never obtained a marriage license or had any ceremony celebrating the marriage.  Each of the states has its own requirements before it will recognize a couple as having a common law marriage. For example, in Texas, as in most of the 11 states, a couple must have made an agreement to someday get married and then cohabited after the agreement was made. They must also have held themselves out to the public as being married.

In Nevada, it does not matter how long a couple may have lived together, what their future intent is or if their friends think they are married. Nevada does not recognize common law marriage, and a divorce lawyer can’t change the law. If there is no marriage, there can be no divorce. This may create problems when a couple decides to separate, and have accumulated property together. If they have children together there are laws for child custody.

Nevada Child Custody, Visitation and Support Laws

Nevada Revised Statutes (NRS) Section 126.036 establishes that “the liberty interest of a parent in the care, custody and management of the parent’s child is a fundamental right.” In order for a man to exercise his rights to custody and visitation, and for a mother to establish her right to child support, paternity must be established. There are several different ways this can be done under Nevada law. Once paternity has been determined, the unmarried parents have the same rights and obligations as do parents who were married to each other.

Under NRS Section 125C.003, a court may order primary physical custody of a child born out of wedlock to the mother if there is no presumption that a man is the father and the man has not acknowledged paternity. This may also happen if the father has knowledge of his paternity, but has abandoned his child.

The court will give primary custody of a child born out of wedlock to the father if the mother has abandoned the child and the father has provided the “sole care and custody of the child in her absence.”

In Nevada, whether parents are married to each other or not, a court makes its custody and visitation decisions based on what it determines is in the best interest of the child.

Property Division for Unmarried Couples

Nevada is a community property state, which means all income a legally married couple earned, and all property they accumulated during the course of their marriage, belongs equally to them both. When they divorce, the court will divide it between them. This includes real estate, automobiles, furniture, savings accounts, retirement accounts, pension funds and even the family pet.

Community property law does not apply when an unmarried but cohabiting couple separates. There are some ways courts may become involved in property division, but it will be in civil court, not in family law court as part of a property division divorce order. For example:

  • Contract principles: If the couple have a contract establishing that they are joint owners of property, and they disagree about how to divide it, a civil law court will evaluate the contract and make a division based on contract principles.
  • Joint tenants: If the couple purchased real estate and took ownership as joint tenants, this means that each party owns 50 percent of the property. It does not matter if one party provided more of the down payment than the other one. They own the property equally and when they separate, the property is divided between them. If it is owned as joint tenants with right of survivorship, when one party dies, the other party inherits the share of the other.
  • Tenants-in-common: This allows a couple to own property together but with different percentage shares. It will be divided according to each person’s share. If one party dies, that person’s share goes into their estate and is not inherited by the other party.

The Putative Spouse Doctrine

In 2004, the Nevada Supreme Court, in the case of Williams v. Williams, adopted the Putative Spouse Doctrine holding that, “Fairness and equity favor recognizing putative spouses when parties enter into a marriage ceremony in good faith and without knowledge that there is a factual or legal impediment to their marriage.” The Court held that this policy is in keeping with “Nevada’s policy in refusing to recognize common-law marriages or palimony suits.” This is because the parties obtained a marriage license and reasonably attempted to enter into a solemn marriage relationship, something missing “in common-law marriages and palimony suits.”

  • The putative spouse doctrine and property division: In the Williams case, the couple had a marriage ceremony, obtained a marriage certificate and believed themselves to be husband and wife for 27 years. When they decided to divorce, they discovered for the first time that Mrs. William’s had not been divorced from her first husband at the time of the Williams’s marriage. They discovered their marriage was never valid and they were granted an annulment.  Since they had a good faith believe they were married, the property they accumulated during the putative marriage was divided between them as though community property.
  • The putative spouse doctrine and spousal support: The Nevada Supreme Court considered how other states apply this doctrine and held that there can be no award of spousal support in the absence of “bad faith, fraud or statutory authority.”
  • Learn more about when to hire a divorce lawyer or contact us today