Nebraska does not permit couples to form common law marriages within its borders under Neb. Rev. Stat. § 42-104, a prohibition that has been in effect since 1923. However, Nebraska courts will recognize and process divorces for common law marriages that were validly established in other states under Neb. Rev. Stat. § 42-117. If you entered a common law marriage in Colorado, Texas, Kansas, Iowa, or another recognizing jurisdiction and now live in Nebraska, you must file for a formal divorce to end the marriage. The filing fee is $164 in most Nebraska counties as of 2026, and at least one spouse must have resided in Nebraska for one year before filing.
| Key Facts | Details |
|---|---|
| Common Law Marriage Allowed | No (prohibited since 1923) |
| Out-of-State Common Law Marriage Recognition | Yes, under Neb. Rev. Stat. § 42-117 |
| Filing Fee | $164 (standardized July 2025) |
| Residency Requirement | One year for at least one spouse |
| Waiting Period | 60 days minimum after service |
| Grounds for Divorce | Irretrievably broken (no-fault only) |
| Property Division | Equitable distribution |
| Remarriage Waiting Period | Six months after decree |
Does Nebraska Recognize Common Law Marriage?
Nebraska absolutely does not allow couples to create common law marriages within the state, a rule established by legislative amendment in 1923 and codified in Neb. Rev. Stat. § 42-104. Under Nebraska law, no marriage shall be recognized as valid unless the parties have obtained a marriage license and the marriage has been solemnized by an authorized person. This means that regardless of how long you live together in Nebraska, share finances, or present yourselves as married, you will not create a legal marriage without a license and ceremony.
The 1923 amendment banning common law marriages was upheld as constitutional in Ropken v. Ropken, 169 Neb. 352 (1959). Nebraska courts have consistently reaffirmed that cohabitation alone confers no marriage rights under state law. Living together for 10, 20, or even 50 years in Nebraska will not establish any marital status or entitle either partner to marital property rights, spousal support, or inheritance protections.
However, Nebraska will recognize valid common law marriages formed in other states under the Full Faith and Credit Clause of the U.S. Constitution and Neb. Rev. Stat. § 42-117. This statute provides that all marriages contracted outside Nebraska shall be considered valid in all Nebraska courts, provided they were valid according to the laws of the jurisdiction where they were formed. This distinction is critical for couples who established common law marriages elsewhere before relocating to Nebraska.
States That Recognize Common Law Marriage
As of 2026, only a limited number of states still permit new common law marriages to be formed. Understanding where common law marriages can be established is essential for Nebraska residents seeking to prove the validity of an out-of-state union. The following states currently recognize common law marriage: Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Rhode Island, South Carolina, Texas, Utah, and the District of Columbia.
Colorado is one of the most commonly cited sources of common law marriages that Nebraska courts encounter. Under Colorado law, a common law marriage requires mutual consent or agreement to enter the marital relationship, followed by conduct manifesting that mutual agreement, as established by the Colorado Supreme Court in Hogsett v. Neale (2021). Both parties must be at least 18 years old and legally free to marry. Colorado imposes no minimum time requirement for cohabitation.
Texas allows couples to establish an informal marriage under Texas Family Code § 2.401 by meeting three elements: agreeing to be married, living together in Texas as spouses, and representing themselves to others as married. Texas also offers couples the option to file a Declaration of Informal Marriage with the county clerk, which creates conclusive proof of the marriage. Without such a declaration, proving a Texas common law marriage requires evidence such as joint tax returns, shared property, and witness testimony.
| State | Key Requirements | Documentation Available |
|---|---|---|
| Colorado | Mutual agreement + cohabitation + public representation | Affidavits, joint documents |
| Texas | Agreement + Texas cohabitation + holding out as married | Declaration of Informal Marriage |
| Kansas | Capacity, agreement, holding out as married | Affidavits |
| Iowa | Present intent to marry + continuous cohabitation + public declaration | Affidavits |
| Utah | Mutual consent + cohabitation + reputation as married (court validation required) | Court order |
How to Prove a Common Law Marriage in Nebraska Court
When seeking divorce for a common law marriage in Nebraska, the spouse asserting the marriage bears the burden of proving it was validly established under the laws of the state where it was formed. Nebraska courts will examine evidence under a totality-of-the-circumstances approach, looking at multiple factors that demonstrate mutual agreement to be married and public representation as a married couple. Courts typically require clear and convincing evidence rather than a mere preponderance.
The most persuasive evidence includes joint federal and state tax returns filed as married filing jointly, which demonstrate both parties represented their marital status to the government. Signed affidavits from family members and friends who witnessed the couple holding themselves out as married carry significant weight. Property deeds, vehicle titles, and bank accounts held jointly as husband and wife also support the existence of a common law marriage.
Additional evidence Nebraska courts consider includes insurance policies listing a spouse as beneficiary, wills and estate planning documents referring to the partner as spouse, the use of one partners surname by the other, birth certificates listing both parties as parents of shared children, shared household expenses and financial interdependence, and social media posts or holiday cards referring to the relationship as a marriage. In Texas, couples who filed a Declaration of Informal Marriage have conclusive proof, while Colorado couples may present notarized affidavits alongside documentary evidence.
Without strong evidence, proving a common law marriage becomes significantly more difficult. Nebraska courts will not assume a common law marriage exists merely because a couple lived together for an extended period. The party claiming the marriage must affirmatively demonstrate that the elements required by the originating states law were satisfied.
Filing Requirements for Common Law Divorce in Nebraska
Once you establish that a valid common law marriage exists, Nebraska handles the divorce proceeding identically to any other dissolution of marriage under Neb. Rev. Stat. § 42-347 through Neb. Rev. Stat. § 42-381. You must meet Nebraska's jurisdictional requirements before the district court can hear your case. The residency requirement under Neb. Rev. Stat. § 42-349 mandates that at least one spouse must have resided in Nebraska for one full year with the bona fide intention of making Nebraska their permanent home before filing the Complaint for Dissolution of Marriage.
Nebraska offers two exceptions to the one-year residency rule. First, if the marriage was solemnized in Nebraska and either party has continuously resided in the state from the wedding date to the filing date, the one-year requirement does not apply. Second, military personnel stationed at any Nebraska installation for one year qualify as residents for divorce purposes. However, neither exception typically applies to common law marriages, since common law marriages cannot be formed in Nebraska and most originate in other states.
You file the Complaint for Dissolution of Marriage with the Clerk of the District Court in the county where either spouse resides. The standardized filing fee across Nebraska district courts is $164 as of July 2025. Service of process costs an additional $30 to $60, and certified copies of the final decree typically cost $20 to $40. Total court costs for an uncontested common law divorce without an attorney range from $200 to $400 as of May 2026. Fee waivers are available for individuals whose income falls at or below 125% of federal poverty guidelines by filing an Application for Waiver of Court Costs and Fees.
The 60-Day Waiting Period
Nebraska imposes a mandatory 60-day waiting period between service of process and when the court may hear the divorce case under Neb. Rev. Stat. § 42-363. This waiting period is a jurisdictional requirement, meaning the court lacks authority to finalize any divorce before 60 days have elapsed. No exceptions exist to this rule, even if both spouses agree on all terms or urgent circumstances exist.
The 60-day period begins when service of process is perfected, meaning when the respondent spouse is properly served with the divorce papers. After 60 days, if both parties waive the requirement of a hearing and the court has sufficient basis to confirm jurisdiction, the court may enter a decree of dissolution without an in-person hearing under Neb. Rev. Stat. § 42-361(3). Contested divorces require a full evidentiary hearing with oral testimony or depositions.
Nebraska courts have held that a divorce decree entered before the 60-day period expires or based on evidence gathered before the waiting period ends is null and void. This strict interpretation means even an otherwise valid decree becomes legally unenforceable if proper timing was not observed. For common law divorces, this waiting period applies equally, and couples should plan their timeline accordingly.
Property Division in Common Law Divorce
Nebraska follows equitable distribution principles for dividing marital property in divorce under Neb. Rev. Stat. § 42-365. Equitable distribution means the court divides property fairly, though not necessarily equally. Nebraska courts typically award each spouse between one-third and one-half of the marital estate, following the commonly cited one-third to one-half guideline. The division does not have to be 50/50, and the court has discretion to adjust the split based on relevant factors.
Marital property includes all assets acquired during the marriage by either or both spouses, regardless of whose name appears on the title. For common law marriages, the marriage date is the date the common law marriage was established in the originating state, not the date the couple moved to Nebraska. Separate property includes assets owned before the marriage, inheritances, and gifts received by one spouse. Commingled assets may lose their separate character if extensively mixed with marital property.
The court considers multiple statutory factors when dividing property: the circumstances of the parties, the duration of the marriage, contributions to the marriage including homemaking and child-rearing, interruption of careers or education, and each partys income and earning capacity. Nebraska is a no-fault divorce state, so marital misconduct like adultery generally does not affect property division. The focus remains on economic factors rather than who was at fault for the marriages breakdown.
| Property Type | Definition | Division Treatment |
|---|---|---|
| Marital Property | Assets acquired during marriage | Subject to equitable distribution |
| Separate Property | Pre-marriage assets, gifts, inheritances | Generally retained by owner |
| Commingled Property | Mixed separate and marital assets | May be classified as marital |
| Marital Home | Real property acquired during marriage | Often awarded or sold and divided |
| Retirement Accounts | 401(k), pension, IRA earned during marriage | Divided by QDRO if applicable |
Spousal Support Considerations
Nebraska courts may award alimony, called spousal support or maintenance, in common law divorces just as in formal marriage dissolutions under Neb. Rev. Stat. § 42-365. The court considers the circumstances of the parties, the duration of the marriage, and each spouses ability to earn income. For long-term common law marriages of 20 or more years, rehabilitative or even permanent support may be appropriate. Short-term marriages typically result in limited or no spousal support.
Factors influencing spousal support include the standard of living established during the marriage, each spouses age and health, contributions to the others career or education, and the time and expense needed for the dependent spouse to obtain training for appropriate employment. Nebraska courts do not use a mathematical formula for calculating support, leaving significant discretion to individual judges based on the specific facts presented.
Child Custody and Support
Common law marriages that produced children require the same custody and support determinations as formal marriages during divorce proceedings. Nebraska courts apply the best interests of the child standard under Neb. Rev. Stat. § 42-364 when determining custody arrangements. Joint legal custody, where both parents share decision-making authority, is presumed unless evidence shows it would not serve the childs best interests.
Child support calculations in Nebraska follow the state guidelines under Neb. Rev. Stat. § 42-364.16, which consider both parents gross income, the number of children, health insurance costs, and childcare expenses. The support obligation generally continues until the child reaches 19 or completes high school, whichever occurs later. Parents can use Nebraskas online child support calculator at the Nebraska Department of Health and Human Services website to estimate their likely support obligation.
Timeline for Common Law Divorce in Nebraska
The minimum timeline for completing a common law divorce in Nebraska is approximately 90 days from filing, assuming both parties agree on all terms and submit proper documentation. The 60-day mandatory waiting period accounts for the bulk of this time. Uncontested divorces where both spouses agree on property division, support, and custody typically finalize within 60 to 90 days after service of process.
Contested common law divorces take significantly longer, often 6 to 12 months or more. Disputes over whether a valid common law marriage existed can add months to the proceedings as the court evaluates evidence and potentially conducts discovery. Property division disagreements, custody battles, and spousal support disputes each extend the timeline. Complex asset valuation or business ownership interests may require expert witnesses and appraisals.
After the court enters the final decree of dissolution, the decree becomes operative 30 days later under Neb. Rev. Stat. § 42-372, providing a window for appeal. For remarriage purposes, neither party may remarry someone other than their former spouse until six months after the decree is entered under Neb. Rev. Stat. § 42-372.01. This six-month remarriage waiting period applies to all Nebraska divorces, including common law dissolutions.
Legal Alternatives for Unmarried Couples in Nebraska
Couples who have lived together in Nebraska without establishing a common law marriage elsewhere have no marital rights under Nebraska law. Cohabitation alone provides no legal protections regardless of duration. However, unmarried couples can create contractual protections through several legal documents that approximate some marital rights.
A cohabitation agreement is a written contract that specifies how property will be divided if the relationship ends, establishes support obligations, and clarifies each partners financial responsibilities during the relationship. Nebraska courts will enforce cohabitation agreements that meet standard contract formation requirements. A durable power of attorney authorizes your partner to make financial and legal decisions if you become incapacitated. A healthcare power of attorney grants your partner authority to make medical decisions on your behalf.
A comprehensive estate plan including a will and beneficiary designations ensures your partner receives intended assets upon your death. Without these documents, Nebraska intestacy laws would distribute your estate only to blood relatives, leaving your partner with nothing regardless of relationship length. Couples should consult with a Nebraska family law attorney to create appropriate legal protections.
Common Mistakes to Avoid
Many couples make critical errors when pursuing common law divorce in Nebraska. The most common mistake is assuming a common law marriage exists without proper evidence. Nebraska courts require clear proof that the marriage was validly formed under another states law, and couples who cannot demonstrate the required elements may find their divorce case dismissed for lack of jurisdiction.
Another frequent error involves residency requirements. Filing for divorce before completing one full year of Nebraska residency results in case dismissal. Some couples relocating from common law marriage states attempt to file immediately upon arrival, not realizing the one-year waiting period applies. Planning ahead and documenting your Nebraska residency from day one helps avoid delays.
Couples also underestimate the importance of gathering documentation before filing. Tax returns, property records, affidavits, and photographs should be collected well in advance. If your former partner disputes the existence of the common law marriage, having comprehensive evidence ready prevents delays and strengthens your case. Finally, attempting to handle a contested common law divorce without legal representation often leads to unfavorable outcomes, particularly when significant assets or children are involved.
Frequently Asked Questions
Can I get a common law divorce in Nebraska if I was never formally married?
Yes, if you established a valid common law marriage in a state that recognizes such unions, Nebraska will recognize your marriage and allow you to file for divorce. Nebraska requires formal divorce proceedings under Neb. Rev. Stat. § 42-117 to dissolve any valid marriage, including common law marriages from Colorado, Texas, Kansas, Iowa, and other recognizing states. The filing fee is $164, and you must meet the one-year residency requirement.
How long do I have to live with someone in Nebraska to have a common law marriage?
No amount of time living together in Nebraska will create a common law marriage. Nebraska banned common law marriage in 1923 under Neb. Rev. Stat. § 42-104, and cohabitation alone confers no marital rights regardless of duration. Even couples who live together for decades, share all finances, and present as married will not be legally married without a license and ceremony.
What evidence do I need to prove my common law marriage in Nebraska court?
Nebraska courts accept multiple forms of evidence including joint tax returns filed as married, signed affidavits from witnesses, property deeds showing joint ownership as spouses, insurance beneficiary designations, and documents using shared surnames. Texas residents may present a Declaration of Informal Marriage for conclusive proof. Colorado residents should gather notarized affidavits alongside documentary evidence of public representation as married.
How much does a common law divorce cost in Nebraska?
The standard filing fee for divorce in Nebraska is $164 as of July 2025. Service of process adds $30 to $60, and certified copies cost $20 to $40. Total court costs for an uncontested divorce without an attorney typically range from $200 to $400. Attorney fees for contested divorces can range from $3,000 to $20,000 or more depending on complexity. Fee waivers are available for low-income individuals at 125% of federal poverty guidelines.
Can my spouse prevent our common law divorce from going through?
No, Nebraska is a pure no-fault divorce state where the only ground for divorce is that the marriage is irretrievably broken under Neb. Rev. Stat. § 42-361. One spouses objection to divorce actually constitutes an irreconcilable difference that justifies dissolution. Your spouse cannot prevent the divorce from proceeding, though they can contest property division, spousal support, and custody matters.
How long does a common law divorce take in Nebraska?
The minimum timeline is 60 to 90 days for an uncontested divorce due to Nebraskas mandatory 60-day waiting period after service. Contested divorces typically take 6 to 12 months or longer. Disputes over whether a valid common law marriage exists can add significant time for evidence gathering and court hearings. The decree becomes fully operative 30 days after entry, and remarriage to someone other than your former spouse requires waiting six months.
What happens to property we acquired while living together in Nebraska?
Property acquired during a valid common law marriage is marital property subject to equitable distribution regardless of where you lived when acquiring it. Nebraska courts divide marital property fairly, typically awarding each spouse one-third to one-half of the estate under Neb. Rev. Stat. § 42-365. Property acquired during cohabitation without a valid marriage remains separate property belonging to whoever purchased it.
Do I need a lawyer for a common law divorce in Nebraska?
While not legally required, an attorney is strongly recommended for common law divorces because you must first prove the marriage existed. If your spouse disputes the common law marriage or you have significant assets, children, or support issues, legal representation significantly improves your outcome. Uncontested cases with minimal assets may proceed pro se using Nebraska Judicial Branch forms, but contested matters benefit greatly from professional guidance.
Can I file for legal separation instead of divorce in Nebraska?
Yes, Nebraska allows legal separation under Neb. Rev. Stat. § 42-350, which does not require the same one-year residency as divorce. Legal separation addresses property division, support, and custody without dissolving the marriage. Some couples use legal separation when one spouse hasnt met residency requirements, then convert to divorce once the one-year threshold is reached. However, you remain legally married until the divorce is finalized.
Will Nebraska recognize my common law marriage from another country?
Nebraska generally recognizes foreign marriages that were valid where contracted under Neb. Rev. Stat. § 42-117, including common law marriages from countries that permit them. However, proof requirements may be more complex, and you may need certified translations of foreign documents. Marriages that violate Nebraska public policy may not be recognized. Consult a family law attorney familiar with international marriage recognition before filing.