Florida does not recognize common law marriages formed within the state after January 1, 1968, under Fla. Stat. § 741.211. However, Florida courts will recognize and grant divorces for valid common law marriages established in other states such as Colorado, Texas, Iowa, or Kansas. To dissolve an out-of-state common law marriage in Florida, at least one spouse must meet the 6-month residency requirement, pay the $409 filing fee, and provide clear and convincing evidence that a valid common law marriage existed under the laws of the state where it was formed.
Key Facts: Common Law Divorce Florida
| Requirement | Details |
|---|---|
| Filing Fee | $409 base fee + $10 summons (as of March 2026) |
| Waiting Period | 20 days minimum from filing to finalization |
| Residency Requirement | At least one spouse must be a Florida resident for 6 months |
| Grounds for Divorce | No-fault: marriage is irretrievably broken |
| Property Division | Equitable distribution (fair, not necessarily 50/50) |
| Common Law Status | Not recognized for marriages formed in Florida after January 1, 1968 |
| Out-of-State Common Law | Recognized if valid under originating state's laws |
Does Florida Recognize Common Law Marriage?
Florida abolished the creation of new common law marriages effective January 1, 1968, making it one of the majority of states that no longer permit informal marriage formation. Under Fla. Stat. § 741.211, no common law marriage entered into after that date shall be valid in Florida. This statute reflects a clear legislative policy requiring formal marriage procedures including obtaining a marriage license and solemnization through a ceremony.
The abolition of common law marriage divorce Florida law means that couples who have lived together for decades in Florida without a marriage license are not legally married regardless of how they present themselves publicly. Living together for 7 years, 10 years, or any length of time does not create a marriage in Florida. Couples cannot acquire spousal rights through cohabitation alone, which affects property ownership, inheritance rights, medical decision-making authority, and other legal protections that married couples automatically receive.
Three specific exceptions exist where common law marriage may be recognized in Florida:
- Pre-1968 Florida common law marriages: Marriages validly formed in Florida before January 1, 1968, remain legally valid
- Out-of-state common law marriages: Florida recognizes common law marriages validly formed in states that permit them
- Good faith marriages: Relationships entered into in good faith and substantial compliance with marriage laws, even if technically defective
States That Recognize Common Law Marriage in 2026
Florida recognizes common law marriages validly formed in other jurisdictions under the Full Faith and Credit Clause of the U.S. Constitution. As of 2026, only eight states plus the District of Columbia continue to permit new common law marriages. Understanding which states allow common law marriage formation is essential for couples seeking common law divorce Florida proceedings.
| State | Requirements | Special Notes |
|---|---|---|
| Colorado | Cohabitation, mutual agreement, public representation | Supreme Court revised elements in January 2021 |
| Iowa | Present intent to marry, public declaration, continuous cohabitation, legal capacity | No specific time limit required |
| Kansas | Capacity, present agreement, public holding out | Both parties must be at least 18 |
| Montana | Capable of consent, mutual consent, cohabitation, reputation as married | No minimum cohabitation period |
| New Hampshire | Cohabitation for 3+ years before death | Recognition for inheritance purposes only |
| Texas | Agreement to marry, cohabitation, representation as married | Declaration of Informal Marriage available |
| Utah | Capable of consent, cohabitation, mutual assumption of marital duties | Court or administrative recognition required |
| District of Columbia | Intent to marry, cohabitation, public holding out | Follows traditional common law elements |
Texas provides a particularly clear path to establishing common law marriage through the option to file a Declaration of Informal Marriage with the County Clerk. Under Texas Family Code Sections 2.401 through 2.405, couples can either meet the traditional elements or formally register their common law union. Both parties must be at least 18 years old to enter into a common law marriage in Texas.
How to Prove a Common Law Marriage in Florida Court
The spouse asserting the common law marriage bears the burden of proving its validity by clear and convincing evidence under the laws of the state where the marriage allegedly formed. Florida courts require comprehensive documentation and testimony demonstrating that all legal requirements were satisfied in the originating jurisdiction. The standard of proof is higher than a preponderance of evidence, requiring substantial proof that makes the marriage highly probable.
Evidence categories Florida courts accept for common law marriage proof include:
Documentary Evidence:
- Joint federal and state tax returns filed as married filing jointly
- Joint bank accounts and credit cards listing both spouses
- Joint mortgage or lease agreements showing shared residence
- Insurance policies naming the spouse as beneficiary
- Wills and estate planning documents identifying the spouse
- Birth certificates listing both parties as parents
- Declarations of informal marriage (available in Texas)
Public Acknowledgment Evidence:
- Social media posts and photographs identifying the relationship as marriage
- Wedding announcements or anniversary celebrations
- Introduction to family, friends, and colleagues as husband and wife
- Shared surname usage on official documents
- Employment records listing spouse as emergency contact or beneficiary
Testimonial Evidence:
- Sworn affidavits from friends and family members
- Testimony from colleagues and community members
- Statements from religious or community leaders
- Expert testimony on originating state's common law marriage requirements
Florida courts evaluate the totality of circumstances, looking for consistency over time. A few months of shared behavior may not suffice, but years of joint responsibilities, social recognition, and public acknowledgment can establish a strong case. Cohabitation alone is insufficient without evidence of intent to be married and holding out as married to the community.
Filing for Common Law Divorce in Florida
The process for dissolving a common law marriage in Florida follows the same procedures as any other divorce once the marriage's validity is established. At least one spouse must have resided in Florida for a minimum of 6 months immediately before filing the petition under Fla. Stat. § 61.021. The filing fee is $409 plus $10 for summons issuance as of March 2026, though fees may vary slightly by county.
Step-by-step filing process:
- Establish jurisdiction by proving 6-month Florida residency through a driver's license, voter registration, or sworn third-party statement
- Gather evidence proving the validity of your common law marriage under the originating state's laws
- Complete Florida Family Law Form 12.901(a) Petition for Dissolution of Marriage
- File the petition with the circuit court clerk in your county of residence
- Pay the $409 filing fee (fee waiver available for those who qualify as indigent)
- Serve your spouse with the petition and summons
- Wait the mandatory 20-day period under Fla. Stat. § 61.19
- Complete the Parent Education and Family Stabilization Course if minor children are involved
- Negotiate settlement terms or proceed to trial
- Attend final hearing for judge to enter Final Judgment of Dissolution
The 20-day mandatory waiting period begins when you file your Petition for Dissolution of Marriage with the circuit court clerk, not when your spouse receives service. Courts rarely waive this requirement, though exceptions may be granted in urgent cases involving military deployment to combat zones or time-sensitive real estate transactions.
Property Division in Common Law Divorce
Florida follows equitable distribution principles for dividing marital property under Fla. Stat. § 61.075. Unlike community property states that mandate a strict 50/50 split, Florida courts divide assets fairly based on each spouse's circumstances, contributions, and future needs. The court begins with a presumption of equal distribution but may deviate when justified by relevant statutory factors.
The equitable distribution process involves:
- Classification: Identifying which assets and debts are marital versus non-marital property
- Valuation: Determining the fair market value of all marital assets
- Distribution: Dividing assets and debts equitably between the spouses
Marital assets include property acquired during the marriage regardless of how title is held, appreciation of non-marital assets due to marital efforts, retirement benefits accrued during the marriage, and real property held as tenants by the entireties. Non-marital assets include property owned before the marriage, inheritances received by one spouse, and gifts from third parties to one spouse.
The cut-off date for classifying marital versus non-marital assets is the earlier of a valid separation agreement or the filing date of the dissolution petition. This date matters significantly in common law marriages where the exact start date may be disputed.
For common law marriage property division, determining when the marriage began can affect what property qualifies as marital. If spouses disagree about when their common law marriage formed, the court must evaluate evidence to establish the date the relationship satisfied all legal requirements in the originating state.
Alimony in Common Law Divorce Cases
Florida's alimony laws changed significantly with Senate Bill 1416, signed by Governor DeSantis on June 30, 2023, which eliminated permanent alimony and established duration caps for all alimony awards. These changes apply to all dissolution petitions filed on or after July 1, 2023, including common law divorce Florida cases.
Types of alimony currently available under Florida law:
| Alimony Type | Maximum Duration | Purpose |
|---|---|---|
| Bridge-the-Gap | 2 years | Transition from married to single life |
| Rehabilitative | 5 years | Obtain education or training for self-sufficiency |
| Durational | Varies by marriage length | Provide support for a set period |
Durational alimony caps based on marriage length:
- Short-term marriage (3-10 years): Maximum 50% of marriage duration
- Moderate-term marriage (10-20 years): Maximum 60% of marriage duration
- Long-term marriage (20+ years): Maximum 75% of marriage duration
Durational alimony may not be awarded for marriages lasting less than 3 years. The alimony amount may not exceed the lesser of the recipient's reasonable need or 35% of the difference between the parties' net incomes.
Courts may consider adultery and its economic impact when determining alimony amounts. A supportive relationship with a new partner can result in reduction or termination of alimony if the obligor proves such relationship exists by a preponderance of evidence.
Child Custody and Parenting Plans
Florida law creates a rebuttable presumption that equal time-sharing is in the best interests of minor children under Fla. Stat. § 61.13. Both parents are encouraged to share the rights, responsibilities, and joys of childrearing after dissolution. The court determines all parenting matters based on the child's best interests using the Uniform Child Custody Jurisdiction and Enforcement Act.
Required elements of a Florida parenting plan:
- Detailed description of how parents will share daily parenting tasks
- Specific time-sharing schedule with each parent
- Healthcare decision-making authority and consent provisions
- School-related matters including registration address
- Communication methods and technologies for parent-child contact
- Holiday, vacation, and special occasion scheduling
- Transportation arrangements for time-sharing exchanges
Modifying a parenting plan requires showing a substantial and material change in circumstances and that modification serves the child's best interests. As of July 1, 2023, the change no longer needs to be unanticipated as previously required.
Parents with minor children must complete the Parent Education and Family Stabilization Course, a 4-hour class available in person or online, before the court will finalize the divorce. A certificate of completion must be filed with the court as proof.
Child support follows Florida's guidelines schedule under Fla. Stat. § 61.30. Support typically terminates when the child reaches 18, unless the child is still in high school performing in good faith with reasonable expectation of graduation before age 19.
Legal Protections for Unmarried Couples in Florida
Because Florida does not recognize new common law marriages, unmarried couples lack automatic spousal protections and must take deliberate legal steps to protect their interests. Without formal marriage, cohabiting partners have no inheritance rights, cannot make medical decisions for each other, and may face significant property disputes upon separation.
Legal tools available to unmarried couples:
Property Protection:
- Cohabitation agreements specifying property rights and division upon separation
- Joint tenancy with right of survivorship on real estate deeds
- Both names listed as owners on vehicles, bank accounts, and investments
- Partnership agreements for jointly owned businesses
Healthcare and Decision-Making:
- Healthcare surrogate designations under Florida Statute 765
- HIPAA authorizations permitting access to medical information
- Living wills specifying end-of-life treatment preferences
- Mental health advance directives
Estate Planning:
- Wills naming the partner as beneficiary
- Beneficiary designations on retirement accounts, life insurance, and financial accounts
- Revocable living trusts providing for the partner
- Payable-on-death designations for bank accounts
Without these documents, Florida law does not recognize unmarried partners as having any automatic rights to each other's property, medical decisions, or estate. The deceased partner's property would pass to legal heirs such as parents, children, or siblings rather than the surviving partner.
Timeline and Costs for Common Law Divorce
The timeline and costs for dissolving a common law marriage in Florida vary based on whether the case is contested or uncontested and the complexity of proving the marriage's validity.
| Divorce Type | Typical Timeline | Estimated Total Cost |
|---|---|---|
| Simplified Dissolution | 30-45 days | $409-$600 (filing only) |
| Uncontested Divorce | 6-12 weeks | $1,500-$5,000 |
| Contested Divorce (moderate) | 9-18 months | $10,000-$30,000 |
| High-Conflict Contested | 24+ months | $30,000-$100,000+ |
Simplified dissolution requires no minor children, mutual agreement on all asset division, waiver of alimony, and both spouses attending the final hearing together. This option is available for common law marriages if both parties agree the marriage was valid and agree on all terms.
Additional costs beyond filing fees include:
- Service of process: $40 by sheriff, varies for private servers
- Mediation: $100-$300 per hour (often required before trial)
- Parenting course: $25-$50 per person
- Financial affidavit preparation: varies
- Expert witnesses for proving common law marriage: $200-$500 per hour
- Attorney fees: $250-$500 per hour depending on experience and location
Fee waivers are available for those who qualify as indigent by filing the Application for Determination of Civil Indigent Status. Approval waives filing fees but does not cover service of process, mediation, or other associated costs.
Frequently Asked Questions
Can I get a common law divorce in Florida if we never formally married?
Florida does not recognize common law marriages formed within the state after January 1, 1968, under Fla. Stat. § 741.211. If you only cohabited in Florida without obtaining a marriage license, you are not legally married and cannot file for divorce. However, if you established a valid common law marriage in a state that recognizes them such as Colorado, Texas, or Iowa, Florida will recognize that marriage and grant a divorce with proper proof.
How do I prove my common law marriage is valid for Florida divorce purposes?
You must demonstrate by clear and convincing evidence that your relationship satisfied all legal requirements of the state where the common law marriage formed. Required evidence typically includes joint tax returns filed as married, joint property ownership documents, testimony from witnesses who observed you living as married, and consistency in presenting yourselves as spouses over time. The burden of proof rests entirely on the spouse asserting the marriage.
What is the filing fee for common law divorce in Florida in 2026?
The base filing fee for dissolution of marriage in Florida is $409 as of March 2026, plus $10 for issuance of a summons, totaling approximately $419 before service costs. Fees may vary slightly by county. Service of process by the sheriff adds approximately $40, while private process servers charge varying rates. Indigent applicants may apply for fee waivers through the court.
How long does a common law divorce take in Florida?
The minimum timeline is 20 days from filing due to Florida's mandatory waiting period under Fla. Stat. § 61.19. Simplified dissolutions typically complete in 30-45 days. Uncontested divorces take 6-12 weeks. Contested cases range from 9-18 months for moderate disputes to 24+ months for high-conflict cases. Proving the validity of a common law marriage may add time if the other spouse disputes it.
Does Florida have a waiting period to remarry after common law divorce?
Florida has no waiting period to remarry after divorce is finalized. The moment the judge signs the Final Judgment of Dissolution of Marriage, you are legally single and free to remarry immediately. There is no mandatory separation period before filing for divorce either, though you must meet the 6-month residency requirement.
How is property divided in a Florida common law divorce?
Florida uses equitable distribution under Fla. Stat. § 61.075, meaning property is divided fairly but not necessarily equally. The court considers each spouse's economic circumstances, contributions to the marriage, career sacrifices made for the family, and other statutory factors. For common law marriages, determining when the marriage began affects which property qualifies as marital, which can be contested if the exact formation date is unclear.
Can I get alimony from a common law marriage divorce in Florida?
Yes, once a common law marriage is proven valid, all divorce rights apply including alimony. Under Florida's 2023 alimony reform (SB 1416), permanent alimony is eliminated, but bridge-the-gap (up to 2 years), rehabilitative (up to 5 years), and durational alimony remain available. Durational alimony is capped at 50-75% of the marriage length depending on duration, and amounts cannot exceed 35% of the income difference between spouses.
What happens to children in a common law divorce?
Florida presumes equal time-sharing is in children's best interests under Fla. Stat. § 61.13. Parents must file a parenting plan detailing custody schedules, decision-making authority, and communication arrangements. Both parents must complete the Parent Education and Family Stabilization Course before finalization. Child support follows Florida guidelines and typically continues until age 18 or high school graduation if later.
Can my spouse contest whether our common law marriage was valid?
Yes, your spouse may deny the common law marriage existed, shifting the burden to you to prove it by clear and convincing evidence. Courts will examine whether you met all requirements of the originating state: capacity to marry, present agreement to be married, cohabitation, and public holding out as married. Without sufficient proof, the court may dismiss the dissolution petition, leaving property and other disputes to be resolved through other legal means.
What if neither spouse meets Florida's residency requirement?
If neither spouse has been a Florida resident for at least 6 months, Florida courts cannot hear your divorce case under Fla. Stat. § 61.021. You must either wait until one spouse satisfies the requirement or file in another state where you qualify. Military personnel stationed in Florida satisfy the residency requirement even without formal Florida residency.
Conclusion
Common law divorce in Florida requires navigating a unique legal landscape where the state no longer recognizes new informal marriages but will dissolve valid common law unions formed elsewhere. The critical first step is proving your common law marriage met all legal requirements of the originating state through clear and convincing evidence including joint tax returns, shared property documents, and witness testimony. Once established, your divorce follows standard Florida procedures: $409 filing fee, 20-day waiting period, equitable property distribution, and potential alimony under the 2023 reformed guidelines. Consulting with a Florida family law attorney familiar with common law marriage issues can help protect your rights and streamline the dissolution process.
Author: Antonio G. Jimenez, Esq., Florida Bar No. 21022
Last Updated: May 2026
Note: Filing fees verified as of March 2026. Verify current fees with your local circuit court clerk before filing.