Common Law Marriage Divorce in Delaware: Complete 2026 Legal Guide

Delaware does not allow couples to create common law marriages within its borders, but the state will recognize and allow the dissolution of common law marriages validly formed in one of the seven states that still permit them. Under 13 Del. C. § 126, a common law marriage established in Colorado, Texas, Kansas, Montana, Iowa, Utah, or the District of Columbia remains legally valid when the couple relocates to Delaware. Dissolving such a marriage requires the same formal divorce process as any ceremonial marriage, with filing fees of $165 plus a $10 court security fee ($175 total) at Delaware Family Court.

Key Facts: Common Law Divorce in Delaware

Does Delaware Recognize Common Law Marriage?

Delaware does not permit couples to establish common law marriages within the state, regardless of how long they cohabit or how they present themselves publicly. Under Delaware Code Title 13, Chapter 1, a valid marriage requires a marriage license and formal solemnization by an authorized officiant. However, 13 Del. C. § 126 explicitly preserves the validity of common law marriages lawfully created in other jurisdictions, meaning couples who formed valid common law marriages elsewhere retain full marital rights when they move to Delaware.

This distinction creates a critical legal pathway for couples who established common law marriages in states like Colorado, Texas, or Kansas before relocating to Delaware. These couples have the same divorce rights, property division protections, and support obligations as traditionally married couples. The key question becomes not whether Delaware will grant them a divorce, but whether they can prove their common law marriage was validly created under the laws of the originating state.

Delaware courts apply the law of the state where the common law marriage was allegedly formed to determine its validity. If a couple claims they established a common law marriage in Texas, Delaware Family Court will analyze whether they met Texas requirements: mutual agreement to be married, cohabitation in Texas, and representation to others as married. Courts require clear and convincing evidence to establish the marriage existed.

States Where Common Law Marriage Remains Valid in 2026

Only seven states plus the District of Columbia currently allow the creation of new common law marriages. Understanding which states recognize these unions is essential for determining whether your relationship qualifies for divorce proceedings in Delaware. Colorado, Texas, Kansas, Montana, Iowa, Utah, and the District of Columbia permit common law marriage formation with varying requirements.

Several states have abolished common law marriage but still recognize unions created before specific cutoff dates: Alabama (before January 1, 2017), Georgia (before January 1, 1997), South Carolina (before July 24, 2019), Pennsylvania (before January 1, 2005), Ohio (before October 10, 1991), Indiana (before January 1, 1958), and Florida (before January 1, 1968). Rhode Island abolished common law marriage effective January 1, 2026.

How to Prove a Common Law Marriage for Delaware Divorce

Proving a common law marriage in Delaware requires presenting clear and convincing evidence that the marriage was validly formed under the laws of another state. Delaware Family Court will not presume the existence of a marriage simply because a couple cohabited for many years. The burden of proof falls entirely on the party asserting the marriage existed, and courts scrutinize evidence carefully because common law marriages lack the documentation that accompanies ceremonial marriages.

The three core elements most states require are: (1) mutual present-tense agreement to be married, not merely an intent to marry someday; (2) cohabitation as spouses in the state that recognizes common law marriage; and (3) holding out to the public as a married couple. Evidence must demonstrate all three elements existed simultaneously in the originating state.

Documentary Evidence

Joint federal income tax returns filed as "married filing jointly" or "married filing separately" provide strong evidence of marital intent. The Internal Revenue Service requires taxpayers to truthfully represent their marital status, making these documents highly persuasive to courts. Other valuable documents include joint bank accounts, shared property deeds, lease agreements listing both parties as spouses, insurance policies naming each other as spouse beneficiaries, retirement account beneficiary designations, and healthcare directives granting spousal decision-making authority.

Testimonial Evidence

Affidavits or testimony from friends, family members, neighbors, and colleagues who observed the couple referring to each other as husband and wife can establish the "holding out" element. Witnesses should describe specific instances where the couple used marital terminology, attended events as a married couple, or were introduced as spouses. Letters, emails, or social media posts where either party referred to the other as "my husband" or "my wife" also serve as valuable evidence.

Public Records and Reputation

School enrollment forms listing both parties as parents with the same last name, emergency contact forms identifying the other party as "spouse," church membership records, and community organization memberships can all demonstrate public reputation as a married couple. The more sources of evidence from different aspects of life, the stronger the case for establishing the common law marriage existed.

Delaware Divorce Process for Common Law Marriages

Once a common law marriage is recognized, Delaware applies identical divorce procedures regardless of how the marriage was formed. The filing process, grounds for divorce, waiting periods, and court fees remain the same for common law spouses as for ceremonially married couples. Under 13 Del. C. § 1504, at least one spouse must have been a bona fide Delaware resident for six months immediately preceding the filing.

Step 1: Filing the Petition

The divorce process begins by filing a Petition for Divorce with the Delaware Family Court in the county where either spouse resides. The filing fee is $165 plus a mandatory $10 court security fee, totaling $175. Petitioners who demonstrate financial hardship (household income at or below 150% of federal poverty level, approximately $23,940 for a single person in 2026) may apply for a fee waiver using Form 257P, the Application to Proceed In Forma Pauperis.

Step 2: Establishing the Common Law Marriage

Unlike traditional divorces, common law divorce cases require an additional step: proving the marriage existed. Petitioners should include documentation of the common law marriage with their filing, including copies of evidence such as joint tax returns, affidavits from witnesses, and any documents showing the couple held themselves out as married in a state that recognizes common law marriage.

Step 3: Service of Process

The non-filing spouse must receive formal notice of the divorce action. Service fees typically range from $10-$100 depending on the method used. Delaware allows service by sheriff, private process server, or certified mail with return receipt requested.

Step 4: Response and Discovery

The respondent has 20 days to file an answer after being served. If the respondent contests the existence of the common law marriage, the court will schedule an evidentiary hearing to determine whether the marriage was validly formed. Both parties may present witnesses and documentary evidence.

Step 5: Resolution

Uncontested divorces where both parties agree on all issues, including the validity of the marriage, can be finalized relatively quickly. Contested cases involving disputes over the marriage itself or division of property may take 6-18 months to resolve through litigation or settlement negotiations.

Property Division in Delaware Common Law Divorce

Delaware is an equitable distribution state, meaning courts divide marital property fairly but not necessarily equally. Under 13 Del. C. § 1513, the Family Court has broad discretion to allocate assets based on numerous factors without regard to marital misconduct. For common law marriages, only property acquired during the period the common law marriage was valid qualifies as marital property subject to division.

The timing of when a common law marriage began significantly impacts property division. Unlike ceremonial marriages with a clear wedding date, common law marriages may have formed gradually. Courts examine when all required elements first existed simultaneously: the agreement to be married, cohabitation, and public reputation. Property acquired before that point typically remains separate property.

Factors Delaware Courts Consider

Under 13 Del. C. § 1513, judges evaluate these factors when dividing marital property:

• The age, health, station, income, vocational skills, employability, estate, liabilities, and needs of each party
• Whether the property award is in lieu of or in addition to alimony
• Each party's opportunity for future acquisition of assets and income
• Contributions to acquisition, preservation, depreciation, or appreciation of marital property, including homemaker contributions
• The value of property set apart to each party
• The economic circumstances of each party when division becomes effective
• Tax consequences of the proposed division
• Whether either party will serve as custodian of dependent children

Separate vs. Marital Property

Property owned before the common law marriage began remains separate property. Gifts and inheritances received by one spouse during the marriage are generally separate property. However, any increase in value of separate property during the marriage may be considered marital property subject to division. Commingling separate property with marital assets can convert it to marital property.

Alimony and Spousal Support in Common Law Divorces

Delaware courts may award alimony to a dependent spouse in common law divorces under the same standards applied to all divorces. Under 13 Del. C. § 1512, a party qualifies for alimony only if they are financially dependent on the other spouse, lack sufficient property to meet reasonable needs, and cannot support themselves through appropriate employment. The duration of a common law marriage directly impacts potential alimony awards.

Alimony duration is generally limited to 50% of the marriage length for marriages under 20 years. A 10-year common law marriage could result in alimony lasting up to 5 years. For marriages lasting 20 years or longer, there is no statutory time limit on alimony eligibility, though courts still consider all statutory factors in determining the appropriate duration and amount.

Factors Affecting Alimony Awards

Delaware judges exercise broad discretion and consider at least 13 factors under 13 Del. C. § 1512(c), including:

• Financial resources of the requesting party, including marital property received
• Time and expense needed to acquire education or training for appropriate employment
• Standard of living established during the marriage
• Duration of the marriage
• Age and physical/emotional condition of both parties
• Financial or other contributions to the other party's education, training, or career
• Ability of the paying spouse to meet their own needs while paying alimony

Termination of Alimony

Alimony automatically terminates upon the death of either party, remarriage of the recipient, or cohabitation of the recipient with another adult in a relationship resembling marriage. Recipients have an ongoing obligation to make good faith efforts toward appropriate employment unless the court specifically finds this requirement inequitable.

Child Custody and Support in Common Law Divorces

Delaware applies identical child custody and support standards to children of common law marriages as to children of ceremonial marriages. Under Del. Code Ann. tit. 13, § 722, courts apply a best interests of the child standard encompassing 14 statutory factors. Both parents have equal rights and obligations toward their children regardless of whether the parents were ceremonially married, common law married, or never married.

Child support obligations continue until the child reaches 18, or 19 if still in high school, whichever comes first. Delaware uses the Income Shares Model to calculate support, estimating what a household would have spent on the child if the family remained intact, then apportioning that cost between parents based on their gross incomes.

Paternity is presumed when parents are married, including common law married. If the respondent contests both the common law marriage and paternity, the court may order genetic testing. Once paternity is established, both parents have support obligations regardless of the outcome of the common law marriage dispute.

Common Challenges in Delaware Common Law Divorces

Common law divorce cases present unique challenges not found in traditional divorces. The most significant challenge involves proving the marriage existed, particularly when one party denies the relationship ever rose to the level of marriage. Without a marriage certificate, couples must reconstruct years of circumstantial evidence to establish all required elements.

Determining the Marriage Date

Unlike ceremonial marriages with specific wedding dates, common law marriages form when all required elements first coexist. This ambiguity affects property division, alimony duration calculations, and statute of limitations issues. Courts may need to determine when the couple first agreed to be married, began cohabiting, and started holding themselves out as married in a state that recognized such unions.

Interstate Complications

Couples who lived in multiple states may face questions about which state's law applies. If a couple began cohabiting in a state that does not recognize common law marriage, later moved to one that does, then relocated to Delaware, courts must determine whether and when a valid marriage formed. The analysis requires examining the law of each state during the relevant time periods.

Evidence Preservation

Years or decades may pass between when a common law marriage forms and when divorce proceedings begin. Documents get lost, witnesses move away or pass on, and memories fade. Couples in common law marriages should preserve evidence of their marital relationship throughout the union, including maintaining copies of joint tax returns, insurance documents, and other records demonstrating their married status.

H2 Frequently Asked Questions

Can I create a common law marriage by living with my partner in Delaware?

No, Delaware does not permit the creation of common law marriages within its borders regardless of cohabitation duration. Under Delaware Code Title 13, Chapter 1, valid marriages require a marriage license and formal solemnization by an authorized officiant. Couples who live together in Delaware for 20, 30, or even 50 years without marrying ceremonially remain legally unmarried under Delaware law.

Will Delaware grant me a divorce if I have a common law marriage from another state?

Yes, Delaware recognizes common law marriages validly formed in other states under 13 Del. C. § 126. If you established a common law marriage in Colorado, Texas, Kansas, Montana, Iowa, Utah, or the District of Columbia, Delaware Family Court will grant you a divorce using the same procedures as any other divorce. The filing fee is $175 total ($165 plus $10 security fee), and at least one spouse must have resided in Delaware for six months.

What evidence do I need to prove my common law marriage in Delaware court?

Delaware courts require clear and convincing evidence that all elements of common law marriage existed under the originating state's law. Strong evidence includes joint federal tax returns filed as married, insurance policies naming each other as spouse, joint property deeds, affidavits from witnesses who observed the couple present themselves as married, and any documents where either party identified the other as "spouse" or "husband/wife."

How is property divided in a Delaware common law divorce?

Delaware divides marital property through equitable distribution under 13 Del. C. § 1513, meaning fairly but not necessarily 50/50. Courts consider factors including each spouse's income, employability, contributions to marital property (including homemaker contributions), and economic circumstances. Only property acquired during the valid common law marriage qualifies as marital property. Property owned before the marriage formed remains separate.

Can I receive alimony from a common law divorce in Delaware?

Yes, Delaware courts award alimony in common law divorces under the same standards as other divorces. Under 13 Del. C. § 1512, you must demonstrate financial dependency, insufficient property to meet reasonable needs, and inability to support yourself through appropriate employment. Alimony duration is generally capped at 50% of the marriage length unless the marriage lasted 20+ years, in which case no time limit applies.

What happens if my partner denies we had a common law marriage?

The burden of proving a common law marriage falls on the party asserting it existed. If your partner denies the marriage, you must present evidence to the court demonstrating mutual agreement to be married, cohabitation, and public reputation as spouses in a state that recognized such unions. The court will hold an evidentiary hearing where both parties can present witnesses and documents before ruling on whether the marriage was valid.

How long does a common law divorce take in Delaware?

Uncontested common law divorces where both parties agree on all issues, including that a valid marriage existed, typically take 2-4 months. Contested cases involving disputes over the marriage's validity or property division can take 6-18 months. The six-month residency requirement must be satisfied before the court can grant the divorce, though you can file the petition at any time.

Do I need a lawyer for a common law divorce in Delaware?

While Delaware allows self-representation, common law divorces present unique evidentiary challenges that make legal representation advisable. Attorneys experienced in common law marriage cases can help gather and present evidence properly, navigate interstate legal issues, and protect your property and support rights. Legal aid may be available for those who qualify financially.

What if we had a common law marriage in a state that no longer recognizes them?

Several states that previously allowed common law marriage (Alabama, Georgia, South Carolina, Pennsylvania, Ohio, Indiana, Florida) still recognize unions validly formed before their respective cutoff dates. If you established your common law marriage before your state abolished it, Delaware will recognize the marriage. You must prove the marriage formed before the cutoff date in your originating state.

Are my children affected by common law marriage disputes in divorce?

Delaware applies identical custody and support standards regardless of whether parents were ceremonially married, common law married, or never married. Children's rights are not diminished by common law marriage disputes. Courts determine custody based on the child's best interests under Del. Code Ann. tit. 13, § 722, and both parents have support obligations until the child is 18 (or 19 if still in high school).

This guide provides general information about common law divorce in Delaware as of May 2026. Laws change, and individual circumstances vary significantly. Filing fees quoted ($165 + $10 = $175) are current as of March 2026; verify with your local Delaware Family Court clerk before filing. For advice specific to your situation, consult a Delaware family law attorney.

Author: Antonio G. Jimenez, Esq. | Florida Bar No. 21022 | Covering Delaware divorce law