Virginia does not permit the formation of common law marriages within its borders and has not recognized such unions since 1877. However, Virginia courts will recognize and dissolve valid common law marriages established in the 8 states and D.C. that still permit them. If you moved to Virginia after establishing a common law marriage in Colorado, Texas, Kansas, Iowa, Montana, South Carolina, Oklahoma, or the District of Columbia, you have the same divorce rights as formally married couples under Virginia's equitable distribution laws. The process requires proving your common law marriage met the originating state's requirements, then following Virginia's standard divorce procedures with a $86-95 filing fee and 6-month residency requirement.
| Key Fact | Virginia Requirement |
|---|---|
| Common Law Marriage Formation | Not permitted (abolished 1877) |
| Recognition of Out-of-State Common Law Marriage | Yes, if valid where formed |
| Filing Fee | $86-95 (varies by circuit court) |
| Residency Requirement | 6 months domicile |
| Separation Period (No-Fault) | 6 months (no children + agreement) or 12 months |
| Property Division | Equitable distribution under Va. Code § 20-107.3 |
| Grounds for Divorce | No-fault (separation) or fault-based |
Virginia Does Not Recognize Common Law Marriage Formed In-State
Virginia abolished common law marriage in 1877 and provides no legal pathway for couples to establish marital status without a formal marriage license and ceremony. Under Va. Code § 20-13, every marriage license must be issued by a circuit court clerk, and the ceremony must occur within 60 days of license issuance. No amount of cohabitation—whether 1 year, 7 years, or 25 years—will create a legal marriage in Virginia. Couples who live together without marrying have no statutory rights to equitable distribution of property, spousal support, or inheritance protections that married couples receive automatically.
The practical consequence is significant: if you and your partner have lived together in Virginia for decades believing you were common law married, Virginia law treats your relationship as unmarried cohabitation. When the relationship ends, you cannot file for divorce in Virginia courts because there is no marriage to dissolve. Instead, separating partners must pursue civil litigation based on contract law, partnership principles, or equitable theories like constructive trust or unjust enrichment to recover shared assets or contributions.
Virginia courts consistently reject attempts to establish common law marriage through long-term cohabitation. Even couples who jointly own property, share bank accounts, file joint tax returns, and present themselves publicly as married are not legally married under Virginia law without a valid marriage license and ceremony performed by an authorized officiant.
Virginia Recognizes Valid Out-of-State Common Law Marriages
Virginia applies the Full Faith and Credit Clause of the U.S. Constitution to recognize common law marriages validly formed in other jurisdictions. Under this doctrine, if you established a common law marriage in a state that permits such unions and later moved to Virginia, your marriage remains legally valid. You are entitled to all rights and obligations of marriage under Virginia law, including equitable distribution during divorce under Va. Code § 20-107.3, potential spousal support under Va. Code § 20-107.1, and inheritance rights.
As of 2026, the following 8 states and the District of Columbia recognize common law marriage:
| Jurisdiction | Key Requirements |
|---|---|
| Colorado | Intent to marry, cohabitation, public reputation as married |
| Iowa | Present intent and agreement to be married, cohabitation, public declaration |
| Kansas | Capacity, present agreement to marry, public holding out (must be 18+) |
| Montana | Competent parties, mutual consent, cohabitation, public reputation |
| Oklahoma | Competent parties, mutual agreement, cohabitation |
| South Carolina | Intent to be married, cohabitation (pre-July 2019 only) |
| Texas | Agreement to be married, cohabitation, holding out (or file Declaration of Informal Marriage) |
| District of Columbia | Both legally able to marry, intent to be married, community recognition |
South Carolina abolished common law marriage effective July 24, 2019, so only relationships established before that date qualify. Similarly, several other states (including Alabama, Georgia, and Pennsylvania) have grandfathered common law marriages formed before specific cutoff dates.
How to Divorce a Common Law Marriage in Virginia
Divorcing a common law marriage in Virginia requires proving the marriage's validity before proceeding with standard dissolution procedures. Virginia courts must first confirm that your common law marriage meets the legal requirements of the state where it was formed. Once validity is established, the divorce process follows Virginia's standard procedures with the same residency requirements, grounds, and property division rules that apply to ceremonial marriages.
The residency requirement under Va. Code § 20-97 mandates that at least one spouse must have been a bona fide resident and domiciliary of Virginia for at least 6 months immediately before filing. This jurisdictional requirement applies regardless of whether your marriage was ceremonial or common law. Military members stationed in Virginia for 6 months may also satisfy this requirement even if their legal domicile is elsewhere.
Step 1: Gather Evidence of Your Common Law Marriage
Virginia courts require clear and convincing evidence that your common law marriage was validly established in the originating state. Documentary evidence carries significant weight and should include joint bank account statements showing shared finances, property deeds listing both parties as spouses, insurance policies naming your partner as spouse or beneficiary, tax returns filed jointly as married, birth certificates naming both parties as parents, employment records listing your partner as spouse, and any state-specific documentation such as Texas's Declaration of Informal Marriage.
Affidavits from friends, family members, and neighbors who can attest to your married relationship provide crucial supporting evidence. These sworn statements should describe how long witnesses have known you as a married couple, specific instances where you presented yourselves as married, and observations of your shared domestic life. Courts find testimony most persuasive when multiple independent witnesses consistently describe the relationship as a marriage over an extended period.
Step 2: File for Divorce in the Appropriate Virginia Circuit Court
Once you can establish your common law marriage's validity, file your divorce complaint in the circuit court of the county or city where you and your spouse last lived together, where the defendant resides (if in Virginia), or where you reside (if defendant is a non-Virginia resident). Filing fees range from $86 to $95 depending on the specific circuit court, as of May 2026. Additional costs include $12 per document for sheriff service of process.
Your initial pleading should include allegations establishing both the common law marriage and grounds for divorce. Attach copies of documentary evidence supporting the marriage's validity. Request a hearing to establish the marriage if your spouse contests its existence.
Step 3: Proceed with Standard Virginia Divorce Procedures
After establishing your common law marriage, the divorce proceeds under Virginia's standard rules. No-fault divorce under Va. Code § 20-91(A)(9) requires living separate and apart without cohabitation or interruption for 6 months (if no minor children and you have a signed separation agreement) or 12 months (with minor children or without an agreement). Even one night of cohabitation during the separation period restarts the waiting clock.
Fault-based grounds under Va. Code § 20-91 include adultery (no waiting period required), cruelty causing reasonable apprehension of bodily harm, desertion continuing for one year, or felony conviction with imprisonment exceeding one year. Proving adultery requires clear and convincing evidence plus corroborating testimony but eliminates the separation waiting period.
Property Division in Common Law Divorce
Virginia applies equitable distribution under Va. Code § 20-107.3 to divide marital property in all divorces, including those dissolving common law marriages. Courts follow a three-step process: classification (categorizing assets as marital, separate, or hybrid), valuation (determining fair market value as of the hearing date), and distribution (dividing marital property based on 11 statutory factors).
Marital property includes all assets and debts acquired by either spouse from the marriage date through the separation date, regardless of title. For common law marriages, the marriage date is typically when all requirements of the originating state were first satisfied—a factual determination that may require testimony about when you first agreed to be married, began cohabiting, and held yourselves out publicly as spouses.
The 11 Factors Courts Consider
Virginia courts weigh 11 statutory factors when distributing marital property:
- Monetary and non-monetary contributions to family well-being
- Contributions to acquisition, care, and maintenance of marital property
- Duration of the marriage
- Ages and physical/mental condition of each party
- Circumstances contributing to the marriage's dissolution (including fault grounds)
- How and when specific property was acquired
- Debts and liabilities of each party
- Liquid or non-liquid character of property
- Tax consequences of the proposed distribution
- Use or dissipation of marital property for non-marital purposes
- Any other factors necessary for a fair and equitable distribution
While courts often arrive at a 50/50 split in practice, equitable distribution does not require equal division. Courts may award anywhere from 0% to 100% of specific assets to either spouse depending on the circumstances. Fault grounds like adultery generally do not affect property division unless marital funds were dissipated to support an extramarital relationship.
Spousal Support in Common Law Divorce
Spouses in valid common law marriages have the same rights to spousal support (alimony) as those in ceremonial marriages. Virginia courts determine spousal support awards under Va. Code § 20-107.1 by weighing 13 statutory factors. Unlike some states, Virginia has no formula for permanent spousal support—amounts and duration rest entirely within the court's discretion based on these factors.
The 13 factors include obligations and financial resources of each party, the marital standard of living, each party's age and physical/mental condition, the duration of the marriage, contributions to family well-being (both monetary and non-monetary), the earning capacity and employability of each spouse, decisions made during the marriage regarding employment, education, parenting, and homemaking, and any other factors necessary for an equitable award.
Temporary Support Formula
Virginia does provide a statutory formula for temporary (pendente lite) spousal support under Va. Code § 16.1-278.17:1. When combined monthly gross income does not exceed $10,000:
| Situation | Formula |
|---|---|
| Without minor children | 27% of payor's monthly gross income minus 50% of payee's monthly gross income |
| With minor children | 26% of payor's monthly gross income minus 58% of payee's monthly gross income |
Above the $10,000 combined income threshold, courts revert to the 13 statutory factors. This temporary formula applies only during the divorce proceedings; final support awards are determined entirely by judicial discretion.
Adultery as a Bar to Support
Proven adultery can completely bar the offending spouse from receiving spousal support under Va. Code § 20-107.1(B). This bar applies unless the court finds that denying support would result in manifest injustice based on the parties' respective fault or the economic disparities between them. Courts weigh factors including the adultery's role in the marriage's breakdown, economic contributions of each spouse, and whether denying support would leave the adulterous spouse destitute.
Child Custody and Support Are Unaffected by Marriage Type
Child custody and support obligations exist independently of marital status. Parents have the same rights and responsibilities toward their children whether the parents were ceremonially married, common law married, or never married at all. Virginia courts determine custody under the best interests of the child standard and calculate child support using the state's statutory guidelines regardless of how (or whether) the parents' relationship was formalized.
If you established a common law marriage in another state and have children together, child custody and support will be addressed as part of your Virginia divorce proceeding. The common law marriage aspect affects property division and spousal support but has no bearing on the children's interests.
Unmarried Cohabitants Have Limited Legal Remedies
Couples who lived together in Virginia without a valid marriage—whether ceremonial or common law from another state—have no access to divorce proceedings, equitable distribution, or spousal support under Virginia family law. The relationship's termination is not a divorce because there was never a marriage to dissolve. However, several legal remedies may be available through civil litigation:
Partnership or contract claims allow recovery when couples functioned as business partners, contributed to joint ventures, or made agreements (written or implied) about shared finances. Constructive trust claims may recover property when one partner contributed to assets titled solely in the other's name. Unjust enrichment claims seek compensation when one partner unfairly benefited from the other's contributions without adequate compensation.
These civil remedies require different legal theories, different courts, and different evidence than divorce proceedings. An experienced civil litigation attorney can evaluate which claims may apply to your situation and what evidence will be needed to prevail.
Protecting Yourself with a Cohabitation Agreement
Unmarried couples living together in Virginia should strongly consider a cohabitation agreement—a legally binding contract establishing each partner's rights regarding property, finances, and support obligations. Because Virginia provides no automatic protections for unmarried cohabitants, a well-drafted agreement can prevent costly litigation if the relationship ends.
Effective cohabitation agreements typically address property ownership (how assets acquired during the relationship will be titled and divided), financial contributions (how expenses and debts will be shared), support obligations (whether either partner will provide financial support after separation), inheritance rights (since unmarried partners have no automatic inheritance rights), and healthcare decisions (powers of attorney for medical emergencies).
These agreements are enforceable under Virginia contract law when properly drafted with full disclosure of assets, no duress or coercion, and consideration (something of value exchanged by each party). Courts will not enforce provisions that are unconscionable or contrary to public policy.
Timeline and Costs for Common Law Divorce in Virginia
| Phase | Timeline | Estimated Cost |
|---|---|---|
| Establishing common law marriage validity | 1-3 months (if contested) | $2,000-$5,000 (attorney fees) |
| Filing and service | 2-4 weeks | $86-95 (filing) + $12-24 (service) |
| Separation period | 6-12 months | N/A |
| Discovery and negotiation | 2-6 months | $3,000-$15,000 (attorney fees) |
| Trial (if contested) | 1-2 days | $5,000-$25,000+ (attorney fees) |
| Final decree | 2-4 weeks after trial | Included |
Uncontested divorces where both parties agree on all terms typically cost $500-$1,500 total. Contested divorces involving disputes over property, support, or custody average $15,000-$30,000 in attorney fees alone. Complex cases with significant assets or custody battles can exceed $50,000.
Frequently Asked Questions About Common Law Divorce in Virginia
Can I get a common law divorce in Virginia if my common law marriage was formed in Virginia?
No. Virginia does not recognize common law marriage and has not since 1877. If you and your partner lived together in Virginia without obtaining a marriage license and having a ceremony, you were never legally married regardless of how long you cohabited. You cannot file for divorce because there is no marriage to dissolve. Your only remedies are civil claims like partnership dissolution or unjust enrichment.
How do I prove my common law marriage from another state is valid?
Virginia courts require clear and convincing evidence that your common law marriage satisfied the originating state's requirements. Gather documentary evidence including joint bank accounts, property deeds showing both names as spouses, joint tax returns, insurance beneficiary designations, and any state-issued marriage documentation like Texas's Declaration of Informal Marriage. Supplement with affidavits from family, friends, and neighbors who can testify to your married status over time.
What states recognize common law marriage in 2026?
Eight states and the District of Columbia currently permit common law marriage: Colorado, Iowa, Kansas, Montana, Oklahoma, South Carolina (pre-July 2019 only), Texas, and D.C. Several additional states recognize common law marriages formed before specific abolition dates, including Alabama (pre-2017), Georgia (pre-1997), Idaho (pre-1996), Ohio (pre-1991), and Pennsylvania (pre-2005).
Can I establish a common law marriage by visiting a state that recognizes it?
No. Courts consistently reject attempts to establish common law marriage through temporary visits to recognizing states. Establishing a valid common law marriage requires meeting that state's residency and cohabitation requirements, which typically involve living together in that state for a significant period while holding yourselves out as married to the community there. A weekend trip to Colorado will not create a common law marriage.
How long do you have to live together to have a common law marriage?
No specific time period automatically creates a common law marriage in any state. The popular belief that 7 years of cohabitation creates common law marriage is a myth. States that recognize common law marriage require intent to be married, cohabitation, and public representation as married couples—but no minimum duration. Conversely, states that don't recognize common law marriage (like Virginia) will never recognize such a marriage regardless of cohabitation length.
What property rights do unmarried couples have in Virginia?
Unmarried couples have no automatic property rights under Virginia family law. The equitable distribution statute under Va. Code § 20-107.3 applies only to married couples. Unmarried cohabitants must rely on general contract and property law. If you jointly own property, both parties may have legal interests regardless of marital status. Otherwise, civil claims for partnership dissolution, constructive trust, or unjust enrichment may allow recovery of contributions made during the relationship.
Will Virginia recognize my common law marriage for purposes of spousal support?
Yes, if your common law marriage was validly formed in a state that recognizes such unions. Virginia applies the Full Faith and Credit Clause to recognize valid out-of-state common law marriages. Once recognized, your marriage carries all the same rights as a ceremonial marriage, including potential spousal support under Va. Code § 20-107.1. You must prove your common law marriage's validity before seeking support.
How does adultery affect a common law divorce in Virginia?
Adultery affects common law divorces identically to ceremonial divorces. Under Va. Code § 20-91(A)(1), adultery is a fault ground for divorce that eliminates the separation waiting period but requires clear and convincing evidence plus corroborating testimony. Under Va. Code § 20-107.1(B), proven adultery can completely bar the adulterous spouse from receiving spousal support unless denying support would cause manifest injustice.
Do I need a lawyer for a common law divorce in Virginia?
While not legally required, attorney representation is strongly advisable for common law divorces. Unlike ceremonial marriages with clear documentation, common law marriages require proving validity through evidence and potentially contested hearings. An experienced family law attorney can help gather evidence, present your case effectively, navigate discovery disputes, and ensure your property and support rights are protected. The additional complexity typically justifies legal representation even in otherwise straightforward cases.
What happens to our children if we separate and were never legally married?
Child custody and support are determined independently of marital status. Virginia courts apply the same best interests standard and child support guidelines whether parents were married, common law married, or never married. If paternity is established (through acknowledgment, birth certificate, or DNA testing), both parents have custody rights and support obligations. File custody and support petitions in the Juvenile and Domestic Relations District Court regardless of your marriage status.