Georgia abolished common law marriage on January 1, 1997, under O.C.G.A. § 19-3-1.1. Couples who established valid common law marriages before this date retain full marital rights and must obtain formal divorces through Georgia Superior Court. Georgia also recognizes common law marriages validly formed in other states under the Full Faith and Credit Clause of the U.S. Constitution. Filing fees for common law divorce range from $200 to $230 depending on the county, and the state requires a 6-month residency period before filing. The mandatory 30-day waiting period applies after service of process.
Key Facts: Common Law Divorce in Georgia
| Requirement | Details |
|---|---|
| Filing Fee | $200-$230 (varies by county) |
| Waiting Period | 30 days after service |
| Residency Requirement | 6 months in Georgia |
| Grounds | 13 grounds including no-fault (irretrievably broken) |
| Property Division | Equitable distribution |
| Common Law Marriage Status | Abolished January 1, 1997 |
| Pre-1997 Marriages | Fully recognized, require formal divorce |
| Out-of-State Common Law | Recognized under Full Faith and Credit |
Understanding Common Law Marriage in Georgia
Georgia no longer permits couples to enter into common law marriages as of January 1, 1997. Under O.C.G.A. § 19-3-1.1, any common law marriage entered into on or after this date is legally invalid in Georgia. However, the statute specifically protects pre-existing unions: otherwise valid common law marriages entered into prior to January 1, 1997, shall not be affected by this Code section and shall continue to be recognized in this state. This grandfather clause ensures that couples who established common law marriages before the cutoff date retain all marital rights and responsibilities.
For a common law marriage to have been validly formed in Georgia before 1997, couples needed to satisfy three distinct requirements under O.C.G.A. § 19-3-1. First, both parties must have had the legal capacity to contract marriage, meaning they were at least 18 years old, of sound mind, not related within prohibited degrees, and had no prior unresolved marriages. Second, there must have been an actual agreement or contract between the parties to be married, evidenced by mutual consent and holding themselves out as husband and wife. Third, there must have been consummation according to law, established through continuous cohabitation.
The burden of proving a common law marriage falls on the party asserting its existence. Georgia courts require proof by a preponderance of the evidence, and the evidence must establish that all three elements existed prior to January 1, 1997. Marriage may be inferred from proof of cohabitation and from the parties holding themselves out to the world as husband and wife, with such proof made through general repute among neighbors and others in a position to know the facts.
States That Recognize Common Law Marriage in 2026
While Georgia abolished common law marriage in 1997, several states still permit couples to form these unions without formal ceremonies or licenses. Understanding which states recognize common law marriage matters for Georgia residents because Georgia courts must give full faith and credit to valid common law marriages formed in other states. If you established a common law marriage in another state and now live in Georgia, you are legally married in Georgia and must obtain a formal divorce to end the relationship.
| State | Current Status | Key Requirements |
|---|---|---|
| Colorado | Recognized | Mutual agreement, cohabitation, public representation |
| Texas | Recognized | Agreement to marry, living together, holding out as married |
| Kansas | Recognized | Capacity, present agreement, public holding out |
| Iowa | Recognized | Present agreement, cohabitation, public declaration |
| Montana | Recognized | Mutual consent, cohabitation, reputation as married |
| Utah | Recognized | Court or administrative order required |
| District of Columbia | Recognized | Intent, cohabitation, public representation |
| New Hampshire | Limited | Recognition for inheritance purposes only |
In Texas, couples may establish common law marriage (called informal marriage) under Texas Family Code Sections 2.401 through 2.405 by agreeing to marry, living together in Texas, and representing to others that they are married. Alternatively, couples may file a Declaration of Informal Marriage with the County Clerk. Kansas requires proof under Kansas Statute 23-2502 of legal capacity to marry, a present marriage agreement, and holding out as husband and wife to the public. Colorado does not require a specific length of cohabitation but looks for mutual agreement, shared finances, and how the couple introduces themselves to others.
Georgia Divorce Residency Requirements
Georgia requires at least one spouse to be a bona fide resident of the state for a minimum of 6 months before filing for divorce under O.C.G.A. § 19-5-2. This residency requirement is jurisdictional, meaning Georgia courts cannot hear your divorce case without meeting this threshold. Residence under Georgia law means domicile, which requires both physical presence in the state and an intention to remain permanently. Evidence of domicile includes voter registration, obtaining a Georgia driver's license, maintaining employment in Georgia, paying state taxes, and other indicators of intent to remain.
For military personnel stationed on a U.S. army post or military reservation in Georgia, the residency requirement extends to one year rather than six months. Military members meeting this requirement may bring a divorce action in any county adjacent to their military installation. A nonresident spouse may file for divorce in Georgia against a respondent who has been a Georgia resident for at least six months, with venue in the county where the respondent resides.
Venue for divorce cases is typically the county where the respondent spouse resides. If the respondent lives outside Georgia, the filing spouse must bring the action in the county where they themselves reside. Common law divorce cases follow these same venue rules, and proving both the existence of the marriage and proper venue may require additional documentation.
Proving a Common Law Marriage in Georgia Court
When seeking a common law divorce in Georgia, you must first establish that a valid common law marriage existed before January 1, 1997. Georgia courts apply the legal standard of preponderance of the evidence, meaning you must prove it is more likely than not that all three marriage requirements were satisfied before the cutoff date. The presumption of marriage from connubial habit is one of the strongest known to the law, and courts will recognize it unless repelled by clear contrary evidence.
Evidence that Georgia courts consider when evaluating common law marriage claims includes documentary and testimonial proof across several categories. For mutual agreement to marry, courts examine written or verbal contracts, correspondence, or testimony indicating both parties intended to be married and consented to the union. Joint tax returns filed as married couple provide strong evidence of intent and agreement. For cohabitation, proof includes shared leases, joint property ownership, utility bills in both names, and testimony from neighbors confirming the couple lived together. For public representation as married, courts look for evidence that the couple introduced each other as husband and wife, used matching surnames, wore wedding rings, listed each other as spouses on insurance or employment documents, and maintained joint bank accounts.
Affidavits from friends, family members, employers, and neighbors who observed the couple holding themselves out as married carry significant weight in Georgia common law marriage proceedings. Such witnesses should describe specific instances when the parties referred to each other as spouse, attended family events together as a married couple, or otherwise demonstrated their marital relationship to the community. The longer the couple cohabited and presented themselves as married, the stronger the presumption that a common law marriage existed.
Filing for Common Law Divorce in Georgia
Once you establish that a valid common law marriage exists, ending that marriage requires the same formal divorce process as any ceremonial marriage in Georgia. There is no such thing as a common law divorce; you must file a Complaint for Divorce in the Georgia Superior Court of the appropriate county and proceed through standard divorce procedures. Filing fees range from $200 to $230 depending on the county, with Fulton County charging $215, Gwinnett County charging approximately $218, and DeKalb County charging around $223. Service of process adds $50 to $100 to total costs.
Georgia recognizes 13 grounds for divorce under O.C.G.A. § 19-5-3, including 12 fault-based grounds and one no-fault ground. The most commonly used ground is that the marriage is irretrievably broken under O.C.G.A. § 19-5-3(13), which requires no proof of misconduct. A marriage is irretrievably broken where either or both parties are unable or refuse to cohabit and there are no prospects for reconciliation. Only one spouse needs to testify that the marriage is broken for the court to grant the divorce, even if the other spouse wants to reconcile.
The mandatory 30-day waiting period under O.C.G.A. § 19-5-3(13) applies to all no-fault divorces, including common law divorces. This waiting period begins on the date the respondent is properly served with the divorce complaint or acknowledges service. Under no circumstances can the court grant a divorce on the irretrievably broken ground until at least 30 days have passed. The fastest uncontested divorce in Georgia can be finalized in as few as 31 days after service, while contested cases range from 6 months to over 3 years.
Property Division in Common Law Divorce
Georgia is an equitable distribution state, meaning courts divide marital property fairly based on the circumstances rather than equally splitting assets 50/50. Under O.C.G.A. § 19-5-13, the court has authority to divide marital property in accordance with the law and the rules of equity. Common law marriages are treated identically to ceremonial marriages for property division purposes. During the period that the husband and wife held themselves out to be married, they are considered married under Georgia law and entitled to equitable division of marital property.
Only marital property is subject to division in a Georgia divorce. Marital property includes assets and debts acquired by either party during the marriage, regardless of whose name appears on the title. Separate property, which is not subject to division, includes property acquired by one spouse before the marriage and property received as a gift, inheritance, bequest, or devise during the marriage. However, separate property can become marital property through commingling. For example, if you owned a home before marriage but used marital funds to renovate or pay down the mortgage during the marriage, the value added during marriage may be considered marital property.
| Property Type | Definition | Division Status |
|---|---|---|
| Marital Property | Acquired during marriage | Subject to equitable division |
| Separate Property | Owned before marriage | Not subject to division |
| Inherited Property | Received by gift or inheritance | Separate unless commingled |
| Commingled Property | Separate property mixed with marital | May become marital property |
Georgia courts consider several factors when determining equitable division, including the duration of the marriage, contributions of each spouse (both financial and non-financial), economic circumstances of each spouse at the time of divorce, earning capacities, debts and liabilities, and future needs. Courts may also consider whether the separation was caused by misconduct of one spouse, such as adultery or abandonment, and the guilty spouse's share may be reduced accordingly.
Spousal Support in Common Law Divorce
Common law spouses have the same rights to alimony as ceremonially married spouses under Georgia law. Georgia courts may award temporary alimony during divorce proceedings and permanent alimony as part of the final decree. Unlike some states with formulaic support calculations, Georgia uses judicial discretion based on the specific circumstances of each case. Alimony is not automatic and is typically awarded only when one spouse demonstrates both need for support and the other spouse's ability to pay.
Factors Georgia courts consider when awarding alimony include the standard of living established during the marriage, duration of the marriage, age and health of each spouse, financial resources and earning capacity of each party, contributions to the marriage including homemaking and child-rearing, and conduct of the parties including any fault grounds that may have contributed to the divorce. A spouse who committed adultery that caused the divorce may be barred from receiving alimony under O.C.G.A. § 19-6-1.
Temporary alimony, also called alimony pendente lite, provides financial support during divorce proceedings and terminates when the divorce is finalized. Permanent alimony continues after the divorce until the receiving spouse remarries, either spouse dies, or the court modifies the order based on changed circumstances. Rehabilitative alimony, designed to help a spouse become self-supporting through education or job training, is also available in Georgia.
Child Custody and Support in Common Law Divorce
Children born to common law marriages have identical legal rights to children born to ceremonial marriages. Georgia courts determine custody and child support using the same standards regardless of how the parents' marriage was formed. Under O.C.G.A. § 19-9-3, courts must determine custody based on the best interests of the child, considering factors such as each parent's love and emotional ties with the child, the ability to provide for the child's needs, stability of the home environment, and any history of family violence or substance abuse.
Georgia uses an income shares model for child support calculations under O.C.G.A. § 19-6-15, which combines both parents' incomes to determine the total support obligation and then divides that amount based on each parent's proportionate share of income. The basic child support obligation depends on the combined adjusted gross income and the number of children. For one child with combined monthly income of $5,000, the basic obligation is approximately $1,060. For two children at the same income level, the basic obligation increases to approximately $1,533.
Effective January 1, 2026, the Parenting Time Adjustment (Schedule C) now mandates that child support is calculated based on actual overnights. This adjustment prevents fault-based accusations in contested divorces from unfairly inflating support payments. Courts consider each parent's actual custodial time when calculating support obligations, with significant parenting time (generally 90 or more overnight visits per year) reducing the paying parent's obligation.
Fee Waivers for Low-Income Filers
Georgia courts allow qualifying low-income residents to file for divorce at no cost by submitting an Affidavit of Indigence. Applicants with household income at or below 125% of the federal poverty guidelines qualify for full waiver of the $200 to $230 filing fee and service of process costs. For 2026, the poverty guideline threshold is $19,506 for a single person. The Affidavit of Indigence must be filed with the Complaint for Divorce, and the court will review the financial information to determine eligibility.
To qualify for a fee waiver, you must provide documentation of income including pay stubs, tax returns, and benefit statements. You must also disclose assets, monthly expenses, and debts. Courts may require a hearing to verify financial hardship, particularly in cases where the affidavit information appears incomplete or inconsistent. If your fee waiver is approved, you will not be required to pay filing fees, service fees, or court reporter fees.
What Happens If You Cannot Prove Common Law Marriage
If your relationship does not qualify as a legal common law marriage in Georgia, you do not have spousal rights even if you have been together for decades. This means you are not entitled to alimony or spousal support after a breakup, you cannot automatically inherit your partner's estate, you have no say in medical or financial decisions for your partner, and you may lose property rights if your name is not on the title. The consequences of failing to prove a common law marriage can be severe, particularly for the financially dependent partner.
Couples who cohabited without establishing a valid common law marriage before 1997 have limited options for property division. Any property titled in only one partner's name generally remains that partner's separate property. Joint property may be divided based on ownership percentages or contribution amounts, but courts do not apply equitable distribution principles to unmarried couples. Palimony claims, which seek support similar to alimony for unmarried partners, are generally not recognized in Georgia.
To protect yourself if you cannot prove a common law marriage, consider consulting with an attorney about your options. You may be able to pursue claims based on constructive trust, resulting trust, or unjust enrichment if you contributed to property titled in your partner's name. However, these claims are difficult to prove and typically require clear evidence of financial contributions and an agreement (express or implied) that you would share in the property.
Frequently Asked Questions
Does Georgia recognize common law marriage?
Georgia abolished common law marriage effective January 1, 1997, under O.C.G.A. § 19-3-1.1. No new common law marriages can be formed in Georgia after this date. However, Georgia continues to recognize valid common law marriages entered into before January 1, 1997, and must recognize valid common law marriages formed in states where such marriages remain legal under the Full Faith and Credit Clause of the U.S. Constitution.
How do I prove a common law marriage existed before 1997?
Proof requires demonstrating three elements by preponderance of the evidence: (1) both parties had capacity to contract (at least 18 years old, sound mind, not related, no prior unresolved marriages); (2) an actual agreement to be married and holding out as husband and wife; and (3) consummation through continuous cohabitation. Evidence includes joint tax returns, shared bank accounts, affidavits from witnesses, shared property ownership, and correspondence referring to each other as spouse.
Do I need a formal divorce to end a common law marriage?
Yes, there is no such thing as a common law divorce. Valid common law marriages must be dissolved through Georgia Superior Court using the same formal divorce procedures as ceremonial marriages. You must file a Complaint for Divorce, pay filing fees of $200 to $230, serve your spouse, and wait the mandatory 30-day period before the divorce can be finalized.
What are the filing fees for common law divorce in Georgia?
Filing fees for all divorces in Georgia, including common law divorces, range from $200 to $230 depending on the county. Fulton County charges $215, Gwinnett County charges approximately $218, and DeKalb County charges around $223. Additional costs include $50 to $100 for service of process. Low-income filers may qualify for fee waivers by submitting an Affidavit of Indigence.
How is property divided in a common law divorce?
Georgia uses equitable distribution under O.C.G.A. § 19-5-13, meaning marital property is divided fairly but not necessarily equally. Courts consider factors including marriage duration, each spouse's contributions, economic circumstances, earning capacities, and misconduct. Common law marriages are treated identically to ceremonial marriages for property division, with all property acquired during the period the couple held themselves out as married subject to equitable division.
Can I receive alimony in a common law divorce?
Yes, common law spouses have identical rights to alimony as ceremonially married spouses. Georgia courts award alimony based on demonstrated need and the other spouse's ability to pay, considering factors including marriage duration, standard of living, age, health, and contributions to the marriage. A spouse who committed adultery causing the divorce may be barred from receiving alimony under O.C.G.A. § 19-6-1.
What if my common law marriage was formed in another state?
Georgia must recognize valid common law marriages formed in states where such marriages are legal under the Full Faith and Credit Clause. If you established a common law marriage in Colorado, Texas, Kansas, Iowa, Montana, Utah, or the District of Columbia, and you now reside in Georgia, you are legally married in Georgia and must obtain a formal divorce to end the relationship.
How long does a common law divorce take in Georgia?
The minimum timeline for any Georgia divorce is 31 days due to the mandatory 30-day waiting period under O.C.G.A. § 19-5-3(13). Uncontested common law divorces typically take 45 to 90 days. Contested cases take 6 months to over 3 years depending on complexity. Common law divorces may take longer if additional time is needed to prove the marriage existed.
What happens to our children in a common law divorce?
Children born to common law marriages have identical legal rights to children of ceremonial marriages. Georgia courts determine custody based on the child's best interests under O.C.G.A. § 19-9-3 and calculate child support using the income shares model under O.C.G.A. § 19-6-15. The 2026 Parenting Time Adjustment ensures support calculations reflect actual overnight parenting time.
Can I handle a common law divorce without an attorney?
While Georgia permits self-representation in divorce cases, common law divorces present unique challenges. You must prove the marriage existed before obtaining a divorce, which requires gathering and presenting evidence to the court. If your spouse disputes that a common law marriage existed, or if you have significant property, children, or alimony issues, working with an attorney is strongly recommended. Many common law divorce cases involve gray areas regarding whether a valid marriage was established.
As of May 2026. Filing fees and court procedures may vary by county. Verify current requirements with your local Superior Court Clerk before filing.
Author: Antonio G. Jimenez, Esq. | Florida Bar No. 21022 | Covering Georgia divorce law