Massachusetts does not allow couples to create common law marriages within its borders under any circumstances. However, Massachusetts courts will recognize and dissolve valid common law marriages established in other states under the Full Faith and Credit Clause of the U.S. Constitution. If you entered a common law marriage in Colorado, Texas, Kansas, or one of the other 8 jurisdictions that still permit informal marriages, you must file for a formal divorce in Massachusetts to legally end that relationship. The filing fee ranges from $215 to $305, and you must meet residency requirements before the Probate and Family Court will accept jurisdiction over your case.
This guide explains exactly how Massachusetts handles common law marriage dissolution, what protections exist for unmarried cohabitants who never had a valid marriage, and the critical steps you must take to protect your property rights.
Key Facts: Common Law Marriage in Massachusetts
| Factor | Massachusetts Rule |
|---|---|
| Common Law Marriage Created In-State | Not recognized — abolished during colonial period |
| Out-of-State Common Law Marriage | Recognized and requires formal divorce |
| Filing Fee | $215 base + $15-$90 surcharge = $230-$305 total |
| Residency Requirement | 1 year if cause occurred outside MA; immediate if cause occurred in MA |
| Waiting Period (Nisi) | 90 days (contested) or 120 days (uncontested) |
| Property Division Standard | Equitable distribution under M.G.L. c. 208, § 34 |
| Cohabitation Agreements | Enforceable under Wilcox v. Trautz, 427 Mass. 326 (1998) |
| Domestic Partnerships | Available only in municipalities with local ordinances |
Massachusetts Does Not Recognize Common Law Marriage
Massachusetts abolished common law marriage during the colonial period, making it one of the earliest jurisdictions in the United States to require formal marriage ceremonies. Under M.G.L. c. 207, couples cannot acquire marital rights and responsibilities simply by living together, regardless of how long they cohabit or how they present themselves to the community. No amount of time — whether 2 years, 10 years, or 50 years — will create a legal marriage in Massachusetts without a valid marriage license and solemnization ceremony.
This prohibition applies universally to all couples in Massachusetts. Even if you and your partner have lived together for decades, raised children together, filed joint tax returns, or referred to each other as husband and wife, Massachusetts law does not recognize you as legally married. The Massachusetts Supreme Judicial Court reaffirmed this position in Collins v. Guggenheim, 417 Mass. 615 (1994), explicitly refusing to extend divorce property division rights under M.G.L. c. 208, § 34 to unmarried cohabitants.
The practical consequence is significant: unmarried couples in Massachusetts cannot access the equitable distribution framework that married couples use during divorce. There is no common law divorce in Massachusetts because there is no common law marriage in Massachusetts — at least not one created within the state.
How Massachusetts Handles Out-of-State Common Law Marriages
Massachusetts courts fully recognize valid common law marriages created in other jurisdictions under the Full Faith and Credit Clause of the U.S. Constitution. If you established a common law marriage in Colorado, Texas, Kansas, Iowa, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Utah, or the District of Columbia before moving to Massachusetts, the Commonwealth treats your relationship as a legal marriage entitled to all the rights and responsibilities of a ceremonial marriage.
This recognition means you must obtain a formal divorce to end the relationship. Simply separating or moving apart does not dissolve a common law marriage recognized by Massachusetts courts. The dissolution process follows the same procedures as any other Massachusetts divorce, including filing a Complaint for Divorce at the Probate and Family Court in the county where you or your spouse resides.
States That Currently Recognize Common Law Marriage (2026)
| State | Requirements | Notes |
|---|---|---|
| Colorado | Mutual consent + open assumption of marital relationship | No minimum cohabitation period |
| Texas | Agreement to marry + cohabitation + holding out as married | Can file Declaration of Informal Marriage |
| Kansas | Present agreement to marry + holding out | Capacity and consent required |
| Iowa | Present intent to marry + continuous cohabitation + public declaration | All three elements must be proven |
| Montana | Mutual consent + cohabitation + reputation in community | Competency required |
| New Hampshire | Cohabitation and acknowledgment as married for 3+ years | Only recognized upon death of one partner |
| Oklahoma | Agreement + cohabitation + holding out | Must be established by clear and convincing evidence |
| Rhode Island | Serious intent + conduct consistent with marriage | Court determines validity case-by-case |
| South Carolina | Present agreement + consummation + cohabitation + holding out | Both parties must have capacity |
| Utah | Valid if parties consent, are legally capable, cohabit, and hold themselves out | Must be validated by court or administrative order |
| District of Columbia | Mutual agreement + cohabitation + community reputation | No minimum time period |
If you believe you may have a common law marriage from one of these jurisdictions, you should consult with a Massachusetts family law attorney to determine whether your relationship qualifies before assuming you need a divorce.
Filing for Divorce from a Common Law Marriage in Massachusetts
The process to dissolve a valid out-of-state common law marriage in Massachusetts follows standard divorce procedures under M.G.L. c. 208. The filing fee is $215 plus a $15 summons surcharge, totaling $230 at minimum. Some courts assess additional surcharges that can bring the total to $305. As of May 2026, verify current fees with your local Probate and Family Court clerk.
Residency Requirements
Massachusetts imposes specific residency requirements under M.G.L. c. 208, §§ 4-5 before accepting jurisdiction over a divorce case:
If the cause of divorce occurred in Massachusetts — meaning the irretrievable breakdown happened while you were living in the Commonwealth — you need only be domiciled in Massachusetts at the time of filing. There is no minimum time requirement.
If the cause of divorce occurred outside Massachusetts — which applies to most common law marriage dissolutions since the marriage itself was created in another state — you must have lived continuously in Massachusetts for at least one year immediately before filing. The Massachusetts Appeals Court clarified in Rose v. Rose, 96 Mass. App. Ct. 557 (2019) that this means actual, continuous residence for 12 months.
Choosing Between 1A and 1B Divorce
Massachusetts offers two no-fault divorce pathways:
A Section 1A divorce under M.G.L. c. 208, § 1A is a joint petition where both spouses agree that the marriage is irretrievably broken and have a complete written separation agreement resolving all issues. The waiting period totals 120 days: a 30-day delay before the Judgment of Divorce Nisi enters, followed by a 90-day nisi period.
A Section 1B divorce under M.G.L. c. 208, § 1B is a contested filing where one spouse believes the marriage is irretrievably broken but the parties have not reached agreement. No earlier than 6 months after filing, there is a hearing, and if the court finds irretrievable breakdown, it enters a Judgment of Divorce Nisi. The divorce becomes final 90 days after the judgment enters.
Proving the Common Law Marriage Existed
Unlike a ceremonial marriage where you simply produce a marriage certificate, dissolving a common law marriage requires proving that the marriage validly existed under the laws of the state where it was created. You may need to present evidence including:
- Joint tax returns filed as married
- Insurance policies listing each other as spouses
- Deeds or titles showing joint ownership as husband and wife
- Testimony from friends and family about your relationship
- Joint bank accounts or credit cards
- Birth certificates of children listing both as parents
- Affidavits from people who attended any informal marriage ceremony or celebration
Massachusetts courts apply the law of the state where the common law marriage was allegedly created to determine validity. If you claimed common law marriage status in Texas, the court examines whether you met Texas requirements: mutual agreement to be married, cohabitation within Texas, and representation to others that you were married.
Property Division for Unmarried Couples in Massachusetts
Unmarried cohabitants who do not have a valid common law marriage from another state face a fundamentally different legal landscape than married couples seeking divorce. The Massachusetts Supreme Judicial Court has consistently held that unmarried partners cannot access the equitable distribution framework under M.G.L. c. 208, § 34.
In Collins v. Guggenheim, 417 Mass. 615 (1994), the SJC explicitly refused to extend divorce property division rights to unmarried cohabitants. This means couples who lived together in Massachusetts for decades without marrying cannot ask a court to divide their accumulated property using the same standards that apply to divorcing spouses.
Contract-Based Claims: Wilcox v. Trautz
The primary legal avenue for unmarried couples in Massachusetts is contract law. In Wilcox v. Trautz, 427 Mass. 326 (1998), the SJC held that unmarried cohabitants may lawfully contract concerning property, financial, and other matters relevant to their relationship. Such contracts are subject to general contract law principles and are enforceable unless they are founded primarily on sexual services or violate public policy.
A valid cohabitation agreement in Massachusetts must be in writing to be enforceable. Oral agreements are extremely difficult to prove and enforce. The agreement must be voluntarily entered with clear terms, adequate consideration, and ideally full financial disclosure from both parties.
Remedies Available to Unmarried Partners
Sullivan v. Rooney, 404 Mass. 160 (1989) provides guidance on available theories for property division between unmarried cohabitants:
- Express contract claims based on written or oral agreements
- Implied contract claims where conduct demonstrates an understanding
- Quantum meruit claims for the reasonable value of services provided
- Constructive trust claims where one party unjustly enriched themselves
- Resulting trust claims based on contributions to property acquisition
These remedies require litigation in civil court, not the Probate and Family Court, and are significantly more difficult to prove than equitable distribution claims in divorce.
The Putative Spouse Doctrine in Massachusetts
Massachusetts has not formally adopted the putative spouse doctrine, which protects individuals who entered into a marriage in good faith believing it was valid when it was actually void due to a technical impediment. States that have codified this doctrine, including California, Colorado, Illinois, Louisiana, Minnesota, and Montana, allow a putative spouse to receive property rights and sometimes spousal support as though the marriage had been valid.
The putative spouse doctrine typically applies in situations such as: one spouse was still legally married to someone else without the other's knowledge; the marriage ceremony was performed by an unauthorized official; or a divorce from a previous spouse was never finalized. In these cases, the innocent spouse who believed they were legally married receives protection.
While Massachusetts courts have not explicitly rejected the putative spouse doctrine, they have also not embraced it. If you believed you were legally married but later discovered the marriage was void, you may need to pursue contract-based remedies similar to those available to unmarried cohabitants, or you may have grounds for fraud or misrepresentation claims against your partner.
Domestic Partnerships as an Alternative
Massachusetts does not have a statewide domestic partnership statute. However, some municipalities have adopted domestic partnership ordinances under home rule authority. Cities including Cambridge, Somerville, Arlington, and Boston have local ordinances that allow couples to register domestic partnerships.
The benefits of a municipal domestic partnership vary by locality but may include hospital visitation rights, the ability to be added to a partner's health insurance, and certain city employee benefits. These partnerships do not create the same legal rights as marriage and do not require a divorce to dissolve.
If your city or town has not adopted a domestic partnership ordinance, this option is not available to you. Check with your municipal clerk's office to determine whether your community offers domestic partnership registration.
Steps to Protect Yourself Without Marriage
If you are in a long-term relationship in Massachusetts without a formal marriage or valid common law marriage from another state, you should take proactive steps to protect your interests:
-
Execute a written cohabitation agreement addressing property ownership, financial responsibilities, and what happens if the relationship ends
-
Title property clearly — jointly with rights of survivorship if you intend to share, or separately if you intend to keep assets individual
-
Create estate planning documents including wills, healthcare proxies, and powers of attorney, since unmarried partners have no automatic inheritance or healthcare decision-making rights
-
Maintain separate documentation of who paid for what, including major purchases, home improvements, and debt payments
-
Consider life insurance policies naming each other as beneficiaries
-
Consult with a family law attorney about whether marriage, a cohabitation agreement, or some other arrangement best protects your interests
Timeline for Common Law Marriage Divorce in Massachusetts
| Stage | Uncontested 1A | Contested 1B |
|---|---|---|
| Filing and Service | Day 0 | Day 0 |
| Response Period | N/A (joint filing) | 20 days for response |
| Earliest Hearing | Within 30 days | 6 months after filing |
| Judgment of Divorce Nisi Enters | 30 days after hearing | Immediately after hearing |
| Nisi Period | 90 days | 90 days |
| Divorce Final | 120 days total | 90 days after judgment |
| Ability to Remarry | After divorce is final | After divorce is final |
These timelines represent the minimum possible periods. Contested cases involving complex property division, child custody disputes, or disagreements about alimony often take 12-18 months or longer to resolve.
Cost Comparison: Divorce Methods in Massachusetts
| Method | Approximate Cost Range | Best For |
|---|---|---|
| DIY Uncontested (1A) | $230-$500 | Simple cases, no children, minimal assets |
| Mediated Divorce | $3,000-$8,000 | Couples who can negotiate with help |
| Collaborative Divorce | $10,000-$30,000 | Complex assets, desire to avoid court |
| Litigated Contested Divorce | $15,000-$50,000+ | High conflict, significant disputes |
| Average Attorney Retainer | $5,000-$10,000 | Initial fee to begin representation |
| Hourly Attorney Rates | $250-$500/hour | Varies by experience and location |
As of May 2026, verify all costs with your local court and potential attorneys.
Frequently Asked Questions
Does Massachusetts recognize common law marriage?
Massachusetts does not allow couples to create common law marriages within the state under any circumstances. This prohibition has been in place since the colonial period, making Massachusetts one of the earliest jurisdictions to require formal marriage ceremonies. However, Massachusetts will recognize valid common law marriages created in other states like Colorado, Texas, or Kansas under the Full Faith and Credit Clause.
How do I divorce a common law spouse in Massachusetts?
You must file a Complaint for Divorce at the Probate and Family Court, pay the $215-$305 filing fee, and prove both that your common law marriage was valid under the originating state's law and that you meet Massachusetts residency requirements. The process follows standard divorce procedures under M.G.L. c. 208, with either a joint petition (1A) or contested filing (1B).
What if my partner and I lived together for 20 years in Massachusetts?
Living together in Massachusetts, regardless of duration, does not create a legal marriage. Couples who cohabited for 20 years without formally marrying are considered unmarried under Massachusetts law and cannot use the divorce process to divide property. Instead, they must rely on contract claims, constructive trusts, or other civil remedies addressed in Sullivan v. Rooney and Wilcox v. Trautz.
Can I get alimony after ending a long-term cohabitation in Massachusetts?
Unmarried cohabitants cannot obtain alimony in Massachusetts because alimony is a remedy available only through divorce proceedings under M.G.L. c. 208. Without a valid marriage, courts have no authority to order spousal support. Unmarried partners may be able to recover financial contributions through contract claims if a valid cohabitation agreement exists.
How long must I live in Massachusetts before filing for divorce?
If the cause of divorce occurred in Massachusetts, you need only be domiciled in the state at the time of filing with no minimum duration. If the cause occurred outside Massachusetts — which includes most common law marriages created elsewhere — you must have lived continuously in Massachusetts for at least one year immediately before filing, per M.G.L. c. 208, §§ 4-5.
What is the waiting period before a Massachusetts divorce is final?
Massachusetts imposes a mandatory nisi period that cannot be waived. For uncontested 1A divorces, the total waiting period is 120 days (30 days before the nisi judgment enters plus 90 days after). For contested 1B divorces, the waiting period is 90 days after the judgment enters. You cannot remarry until this period expires.
What states still allow common law marriage?
As of 2026, eleven jurisdictions recognize common law marriage: Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. Several other states recognize common law marriages created before specific cutoff dates, including Pennsylvania (before September 2003), Ohio (before October 1991), Idaho (before 1996), and Georgia (before 1997).
Is a cohabitation agreement enforceable in Massachusetts?
Yes. Under Wilcox v. Trautz, 427 Mass. 326 (1998), the Massachusetts Supreme Judicial Court held that unmarried cohabitants may lawfully contract concerning property, financial, and other matters. The agreement must be in writing, voluntarily entered, include clear terms and adequate consideration, and cannot be founded primarily on sexual services. Courts may refuse to enforce unconscionable provisions.
What happens to property if we separate without being married?
Without a marriage or valid common law marriage, Massachusetts courts cannot apply equitable distribution. Property generally belongs to whoever holds legal title. Joint accounts and jointly titled property may need to be divided through negotiation or civil litigation using contract theories, quantum meruit, constructive trust, or resulting trust claims as outlined in Sullivan v. Rooney, 404 Mass. 160 (1989).
Can I register a domestic partnership in Massachusetts?
Massachusetts does not have statewide domestic partnership registration. However, some municipalities including Cambridge, Somerville, Arlington, and Boston have adopted local domestic partnership ordinances. Check with your city or town clerk to determine availability. These partnerships provide limited benefits and do not create the same legal rights as marriage.