Tying the knot as a synonym for marriage dates back, depending on your chosen folk etylomology, at least to the Middle Ages when it was called “handfasting.”1 Not all Virginia couples tie the knot, sign the marriage certificate, or exchange vows — how do they handle getting a divorce?

What Makes a Marriage?

In Virginia, you and your true love are legally married when you fulfill a surprisingly short list of requirements outlined by the Virginia Department of Health:

  1. Obtain a marriage license through any circuit court in the state
  2. Get married within 60 days of the license date of issue
  3. Select an officiant authorized by the circuit court of jurisdiction to perform marriages

Notice: no blood test, no waiting period if you divorced someone and want to remarry, no need even for witnesses! Those four requirements (and a legal age of at least 16 with parental consent) and you have yourself a marriage.

Still, for some Virginians, that seems like too much bother. They look for a more streamlined route, like never signing a marriage license.

Uncommon Common Law Marriage

Many people have heard the expression “common law marriage.” The expression is common, while the act is not.

In Virginia, as in most states, common law marriage is outside the law. It is not legal. You cannot tie the knot or handfast or whatever you wish to call it without signing a marriage license.

In fact, experts at Unmarried Equality say only 16 states have some kind of provision for common law marriage, and none allows the mythical “seven years and you’re hitched” method.

So, if you and your “wife” never signed a marriage license, you are not married in Virginia. Since you are not married, you have no need to file for divorce.

Not So Simple

Some Virginians choose to cohabitate without the benefit of a marriage license because they say no piece of paper ties them down. Living together is simpler, more honest, back to nature, truer to your souls, blah, blah, blah. None of that stands in the face of reality, thoughtfully laid out by the Virginia State Bar:

  • Do you want your children to be legally considered legitimate or illegitimate?
  • What about custody of children?
  • How will you handle debts?
  • Whose name is on the deed?

If after giving due consideration to all these and other pesky real-life concerns, you and your true love have been cohabitating and somehow working out mutually agreeable solutions to all the problems, more power to you. You legally may be obligated to each other through informal or formal written agreements, but you still have no need to file for divorce.

All you have is a contract. That is business law, not family law.

Contractual Obligations

In a cohabitation, you and your partner may agree to split responsibilities, assets and debts equally. Get it in writing. Just because you two did not tie the knot does not mean you are not tied down by some common controlling factors:

  • Mortgages
  • Bank loans
  • Unsecured debt (credit cards)
  • Wills
  • Insurance
  • Medical records, including HIPAA clauses, power of attorney for health care, and doctors’ bills

When the relationship unravels, if you have a written agreement (even if only notarized by a Virginia notary public) you can settle your contractual obligations in a businesslike, straightforward manner. No need for dramatic scenes involving possessions on the front lawn, no need for angels with dirty faces crying through screen doors. Just look over the contract, divide everything up, and move on.

Do You Have Children?!

Those angels with dirty faces, staring through the screen door, greatly complicate matters with cohabitation. No, you do not need to file for divorce, but you have a legal responsibility to always act in your children’s best interest.

Virginia’s courts do their utmost to protect Virginia’s children, in some cases by protecting them from Virginia’s parents. If you have insisted on cohabitating without benefit of a marriage license, you invite the courts to intercede to protect your children.

Avoid raising the ire and intervention of the courts by determining answers to every aspect of the children’s lives before parting ways. Consider all this:

  • Whose last name do they have?
  • Which parent should have custody of the children?
  • How will the other parent continue the relationship with the children?
  • How will child support be paid? How much, how often, and for how long?
  • Who will make legal decisions for your children?
  • Will you both agree to stay geographically close so you can both maintain contact?

Find a Skilled Family Law Attorney

People who live together without a marriage license, even people who stay together and raise children, may feel they are living simpler lives, free of legal entanglements. Those folks quickly learn that they eventually will have a legal knot of another kind when they want to part ways, especially with children in the picture.

Do yourself a favor, if you and your true love no longer feel true love. Get an attorney. Pick apart the tangle and separate all the loose ends legally. Divorce or not, you owe it to yourself, your children, and your once-significant other to part ways legally and cleanly.

Whether you have a simple question or a complicated knot to untangle, The Firm For Men awaits your call at 757-383-9184. Please also feel free to contact us online. We can provide practical solutions to just about every type of Virginia family law issue. We work exclusively with the fine men of Virginia, protecting your financial future and defending your rights.

1. http://medievalscotland.org/history/handfasting.shtml