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What Is Common Law Separation?

A common law separation occurs when an unmarried couple that had previously lived together go their separate ways.
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  • Written By: Christina Edwards
  • Edited By: W. Everett
  • Last Modified Date: 04 August 2014
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A common law separation occurs when two individuals who have been living together, in a common law marriage situation, decide to go their separate ways. Unlike couples in a legally binding marriage where all assets are usually split equally, couples going through a common law separation take only what is theirs. Joint property is often divided equally. Although obtaining child support is probable, getting spousal support may not occur in these type of situations.

Couples, whether legally married or not, split up for a number of reasons. Sometimes one person will decide to leave, and other times it will be a mutual decision. A common law separation may be either temporary or permanent. Unlike a traditional marriage, however, in the case of common law separations, parties are often able to walk away without any paperwork or legal proceedings.

When it comes to assets, a general rule of thumb during a common law separation is that the parties walk away from the relationship with whatever each brought into it. This includes property and assets, as well as debts. For example, if a couple moves into a home owned by the man, in the event of a separation, the man will usually keep the house. On the other hand, if he had a large amount of credit card debt, the woman would not be responsible for this after they go their separate ways.

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Cases involving property or assets that were acquired during the common law marriage, on the other hand, are a little more complicated. This is especially true with large purchases, such as a home, in which both parties own a portion. In these situations, the property is often sold, and each party takes half of the value. One party could also buy out the other party in order to keep it.

If a couple has children, custody and child support arrangements are usually worked out during a common law separation. Most experts who deal with common law divorce and separation agree that this is best done outside of the courtroom, since legal fees are usually quite high. If an acceptable agreement can not be reached, mediators or lawyers may be necessary.

Spousal support is a little harder to get after a common law separation. In some areas that recognize common law marriage, a common law spouse may be able to petition for spousal support. In some areas of Canada, for example, one party is able to file for child support until two years after the separation. Other areas, however, do not allow this option at all.

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