skizziks

In some states, two people living as a married couple are common law married. Why can't two people living as divorced, with intent of being divorced, be common law divorced? supposedly common law divorce can take place for a common law marriage, but what about a regular actual by the law marriage? If two people agree, why do they have to go through lawyers and all that?

KirStang

You don't have to go through lawyers. It's constructive desertion. If two parties agree, they can go through a simple divorce and the process should be relatively straightforward, so long as there are no major disputes over custody, marital property, maintenance/alimony, and the like.

Generally, the two parties will have to have been living apart, or, demonstrate an intent to stay apart (i.e. sleeping in separate rooms), and a court will grant a divorce on grounds of constructive desertion (or whatever the hell the term is).

More and more couples go to court pro se these days. You don't necessarily need a lawyer to divorce, although it certainly helps to have someone who knows the law to streamline your case. I cringe when I watch pro se litigants ramble on about an immaterial issue.

This is not intended to be legal advice, and any information here should be confirmed with a bar licensed attorney in your state.

__________________

KirStang

*poke*

Are you a spambot?

__________________

GreyWolf

Basically you answered your own question... there IS common-law divorce. If two people living common-law choose to separate, and there is no dispute over settlement of assets and/or arrangements for children, then they leave one another unencumbered (the children aspect can always be revisited). Nothing prevents them from living common-law or legally marrying someone else.

However, once you get legally married, you've gone a step beyond common-law and have involved the legal system (hence legally married). In that case, the rather ponderous legal system will require that you follow its particular rules. Without a divorce, you may not legally marry anyone else. And, if you choose to live common-law with someone else, you will still be bound by your marriage, and for legal and tax purposes probably be unable to claim your common-law status. In that case, you can at best claim to be separated.

__________________
The secret to great marksmanship is deciding what the target was AFTER you've shot.

skizziks

i just don't see why we are compelled to include courts and lawyers when two consenting adults agree on a decision, just to make it "official."

as far as a bar licensed attorney, i know lots of non licensed attorneys at the bar i hang out in.

KirStang

Well, only 9 states recognize common law marriage:

Common Law Marriage

You posit common law marriage (and common law divorce) as a simple thing, but when assets become involved, and when alimony claims float to the surface, it's a real pain in the ass to sort through everyone's claims.

See for example: Jennings v. Hurt

Common Law Marriage Article. New York Divorce and Family Law, the definitive site about divorce, child support and custody.

__________________

Ourcrazymodern?

I suspect it's because the systems that try to control us can't do it.
The lure of sex always trumps the rule of money. Common law is just as rare as common sense? My ex is an attorney, & I believe she never philosophizes. She has the house.

...Divorce damages capitalism's imaginary control of how people should behave. Witness how much of it stems from what can never be agreed upon while individuals exist.

__________________
BE JUST AND FEAR NOT