Alabama Law Review
Common law marriage has existed in the United for more than 200 years. Although not permitted as widely today, every state continues to recognize a common law marriage from one of the handful of states that still permit parties to wed in this informal manner. In contrast, never has there been anything even approaching common law divorce—and for good reason. Namely, the states’ desire to ensure that those who leave unsuccessful marriages do so in such a way that their interests (as well as their children’s) are adequately protected. Nonetheless, even though not sanctioned by law, informal divorce not only exists but is far from uncommon. Specifically, by insisting on strict formality, the states have perpetuated a system of divorce that—although much more accessible today than it was historically—effectively denies a large segment of the population the ability to legally dissolve a marriage. As a result, these individuals are more likely to forgo divorce altogether and instead simply go their separate ways without any judicial oversight whatsoever of the dissolution. In fact, a number of recent studies have not only revealed the extent of this practice, but the more troubling news that these individuals do not appear randomly in the population; instead, it is typically those of lower socioeconomic backgrounds, have less education and are from minority racial and ethnic communities who tend to informally separate in lieu of formally divorcing. This practice, dubbed a “poor man’s divorce,” is quite dangerous given that it leaves unsophisticated parties largely unprotected as they must decide amongst themselves—during a time of power imbalance and great interpersonal conflict—how to divide property and apportion parental responsibilities. Importantly, however, these informal “divorces” likewise compromise a number of important state interests. By focusing on those state harms and offering suggestions for reform, it is the goal of this Article that courts, legislators, and policy makers alike will be more incentivized and greater equipped to institute more meaningful access to divorce—particularly for those from marginalized communities—thus providing greater agency to those seeking to dissolve unsuccessful marriages.
Michael J. Higdon, Common Law Divorce, 74 ALA. L. REV. 365 (2022).