You get a common law divorce the same way you get a divorce when you enter into a ceremonial marriage. You have to file a petition with the court. If you don’t, and you could be guilty of bigamy which is punishable by jail time. There are about 13 states (per Wikipedia) that recognize common law marriages in the United States. Those are: “Alabama, Colorado, Georgia, Idaho [only if before 1-1-96], Iowa, Kansas, Montana, Ohio [only if before 10-10-91], Oklahoma, Pennsylvania [only if before 01-01-2005], Rhode Island, South Carolina, North Carolina and Texas) and the District of Columbia.”
Now, about common law marriages. Mere cohabitation in one of the above mentioned states is not enough to create a common law marriage. Wikipedia on the characteristics of a common law marriage:
- Common-law marriages are not licensed by government authorities, although they may be recorded in the public records of some governmental entities.
- Common-law marriages are not solemnized.
- Cohabitation alone does not create a common-law marriage; the couple must hold themselves out to the world as spouses; and
- There must be mutual consent of the parties to the relationship constituting a marriage
- Both parties must be of legal age to enter into a marriage or have parental consent to marry
- Both parties must be otherwise qualified to enter into a marriage, including being unmarried, of sound mind, and, in many states, not sentenced to or serving a term of life in prison
- In some jurisdictions, a couple must have cohabited and held themselves out to the world as husband and wife for a significant period of time, not defined in any state, for the marriage to be recognised as valid.
Other countries in the world also recognize common law marriages. The following list is not exhaustive: U.S., Canada, Israel, Australia. Like anything else, there are subtle difference and nuances in the laws of each country. For example, each country may have a requisite minimum period of cohabitation before a common law marriage can be declared. They may also have rules regarding the statute of limitations for asserting the existence of a common law marriage after a separation has taken place. In other words, a party seeking to enforce a common law marriage may be required to file a petition within 2 years of the separation otherwise, no common law marriage will be recognized. (The state of Texas has such a rule.)