Ending a Marriage is Hell: Is Common-Law Divorce the Answer?

Why we need new ways to marry and divorce.
Old friends are getting together again after 30 years; what a tale my friend told about her 35-year unhappy marriage and her decision not to divorce. Photo: Becky Whetstone.
We’ve all heard of common-law marriage, a “legally recognized marriage between two people who have not purchased a marriage license or had their marriage solemnized by a ceremony.” [1] Eight states recognize this phenomenon in the United States, and if the couple breaks up, they have to go through a legal divorce like everyone else.

But have you ever heard of common law divorce? I hadn’t until my friend from San Antonio, Em, who has been married 35 years, told me she is in one …

“Thirty years ago, I coined that phrase,” she said. “I told Ryan I was going to move into a condo in Austin, and I was done with our marriage, but I didn’t have the energy to go through divorce because I was mentally depressed and exhausted. ‘You file if you want,’ I said, ‘I don’t care.’”

Ryan never filed for divorce, but he did protest, got angry, and even cried, she says. Em doesn’t know why he didn’t divorce her, but some people are so against it that they’ll endure the seemingly impossible to avoid it.

Or, they are happy enough the way they are and don’t want to divide up their stuff and go through one of life’s messiest experiences. Maybe they hope their spouse will come around one day. People’s reasons for staying in a marriage that provides them little satisfaction always amaze me, but what is acceptable for one person differs from the next.

They are still married in one of the most interesting marital situations I have ever heard of. They were separated for three years, living totally apart, then living together, sometimes romantically or sometimes not. They had a child 20 years ago, a long overdue dream for Em, and that has put them in the same location for years, for better or worse. Today, Em reports their relationship has been platonic for a long time, but they’re family and companions.

It caused me to ponder that maybe couples could be more creative in working through the highs and lows of their lives together. Maybe there are more than just three choices when a family is in crisis: either a broken marriage followed by divorce, working on a failing marriage, which takes a lot of dedication, time, and work, or separation and common-law divorce. To do it like Em and Ryan, it would take two special people who could give each other space and freedom to leave and come back throughout various stages over the years. Ryan’s ego had to have been such that it wasn’t defined by his wife going outside the marriage to get sexually satisfied, not to say it didn’t hurt. Could you do that?

During her fed-up and wandering years, Em considered herself divorced, even though she wasn’t. Her husband Ryan was a physician and workaholic who enjoyed his new-age Bible church and working out on weekends. It was his devotion to these things and marital neglect that drove them to common-law divorce in the first place. Though Em has no idea whether he has seen women on the side or not, they don’t talk about it.

“We’re still together because Ryan lets me do whatever the hell I want,” she says. ‘It’s trickier if you don’t have the luxury of two homes,” she says, acknowledging her husband’s high income. He also has been willing to support her separate lifestyle. She compares their situation to other, more common ones. “I’ve had several friends who have gotten divorced and then remarried the same spouse. We avoided the financial and emotional headaches and heartache of Texas law and the divorce process and just worked through it.”

Em has always done everything in her own way, and I hadn’t seen her in decades when she flew to Arkansas recently to see the eclipse. Em found out Arkansas would have clear skies when the moon crossed over the sun and caught a plane from cloudy Austin to see it. She messaged me to see if I was available to catch up.

That’s the kind of person she is—fun, spontaneous, and sort of a minor league jet setter who travels wherever on a moment’s notice. I remember 25 years ago when she flew to Florida and other places to hang out like a groupie with her favorite rock bands for months at a time, obviously during her common law divorce period. Whereas most people conform too much to our culture, Em doesn’t conform at all.

Memories of the past.

The last time I saw her and Ryan, I was on a sailboat in the Caribbean in 1993 with my kid’s dad and another couple. I recall all three wives looking out at the crystal blue waters and griping about their lonely marriages to busy surgeons who put close to zero effort into their relationships. For me, the only one with children, it was near the end of the line, and we’d part ways within months. Thirty years later, the other two couples are still together, though they’ve had to be creative to make it. There have been children born, affairs, and spouses looking the other way and doing their own thing, but never a formal divorce or legal document at all. I could never live that way, but I want to understand how some people can.

“I was already having affairs when we were on the trip,” said Em. “All Ryan cares about — then and now — is being Dr. Ryan, the surgeon. I begged, pleaded, for him to come to engage with me, and he never did.”

It always boils down to the unresponded-to angry and anguished pleas for a marriage to be different. Almost everyone in an unhappy marriage does it, and almost no one wakes up at that point and changes enough for the marital relationship to be saved or returned to health.

Momma said.

My mom used to tell me when I was young that a popular belief was that a lot of doctors’ wives were alcoholics because their husbands were never home, an old, inaccurate stereotype, of course. Knowing what I know now, I’d say it’d be more likely for spouses of physicians to medicate themselves because of how their partners act when they’re home.

A significant number of surgeons are egomaniacs who act like spoiled and entitled little boys and girls accustomed to the staff running around trying to please them, and add to that, they’re exhausted, mostly left-brained, invulnerable, and entirely unevolved relationally. The ones I have known personally and in my practice mostly allow their careers to dominate and prioritize every aspect of their lives while their families take second place and wait for a few crumbs of time. Em gave up waiting and did what many people do when they realize their partner won’t be relational: give up and focus on their own happiness.

Do we have to divorce?

I hate everything about divorce. It is a toxic reality that is rarely handled with maturity and decency. And this is what happens when one person in a couple says, “I don’t want to be with you anymore.” Isn’t there another way it can be done, a timeout taken, or the process slowed, so that people don’t suffer as much as they do now? I sincerely wonder.

When a couple doesn’t have children, it can be a good idea and the best way for two people who made a mistake to cut the line and go their separate ways, and I can see that, but it still doesn’t have to be nasty. How do we remove the nasty in all types of divorces? Has Em found a way? Is there another way we haven’t even thought of yet?

Those without children will likely recover from divorce and not feel the ongoing chronic pain and guilt that comes when couples with children split up. When it comes to those with children, though, dividing marital property, paying child support, dealing with child custody, and sometimes paying spousal support are the things that rip at a person’s primal survival instincts, exposing raw emotions and activated nervous systems that cause us to act as our worst selves.

Traditional marriage came about long ago, and its purpose wasn’t for love; it was more for two families joining in melding wealth, property, and other practical survival reasons. When the tide turned and people began to marry for love in the 18th and 19th centuries, they didn’t live as long as we do now, so the average marriage then might have lasted 20 to 30 years. I sometimes wonder if marriage itself doesn’t need a more realistic redesign or change in expectations because it is so hard to maintain love, respect, romance, desire, fidelity, and even friendship over 40, 50, 60, and more years together.

My former brother-in-law was a cynic and had an idea … he believed marriage licenses should be renewable every five years. At the end of five years, either person could walk away, no questions asked.

“Because renewal time is coming up, I’d bet each person would put in a lot of effort in the fourth and fifth years,” he laughed. Even then, decades ago, I knew he was right.

Looking for change.

Perhaps a marriage might work better if it became more of a commitment ceremony rather than the entangling legal business agreement it is. A couple would work out a general outline of property division and child custody agreements should they part before having children or acquiring things together in a more detailed prenuptial agreement when each person is full of positive regard for the other and eager to get along.

Em and Ryan are doing marriage their way, and it works for them, though I imagine neither one of them is getting exactly what they want … is it ever possible to get most of what you want in marriage over the lifespan? Maybe not.

Em says the messier part of their estrangement was years ago; now they’re companions, and though she threatens to leave again, “Once in a blue moon,” she says. They’re settled into life together as co-parents and an amicably estranged couple. Interesting.

“We are now common law divorced, divorced without the paperwork in my mind,” she says, even though they are back to living together. “We’re fine now, though, and I’m not looking for an out anymore.”

I mentioned the concept of common law divorce to a friend and colleague, a fellow marriage therapist who happens to be religious. He was adamantly opposed and very passionately against it; he’s been divorced twice and married three times, but he remains a traditionalist.

“What about family,” he said. “What happens to us without a legal marriage ceremony and a marriage certificate?”

My argument is that up until now, we have been a mess with it, and maybe we’d be a mess without it. Certainly, some common-law couples are fully committed but never legally married and seem to thrive that way. The percentage of truly happy couples who are legally married is very low, around 12 percent, so isn’t there something else we can devise that is more family-friendly, more amenable to happiness, something more flexible?

After seeing all the pain and suffering that comes with unhappy marriages, the misery of a traditional divorce, the ugliness that takes place in family court, the inability or unwillingness of divorce attorneys to think in terms of what is in the best interest of a family as a whole, and what it all does to children, I’d like to see some cultural shifts.

Let’s make it much more difficult to get married and create a process where a marriage license is earned by completing an associate’s college degree in marriage and family over a length of time, like a minimum of two years. During this time, couples would learn what it is to be a healthy adult and what it is to have a healthy relationship with a spouse, child, and their biological family. We could also make it much easier to divorce once a couple completes a managed waiting period and meets the qualifications for an amicable parting. Perhaps people going nasty in divorce would lose their rights for equal division of children and property. There has to be a price to pay, such as loss of legal rights, that would discourage any person from engaging in adversarial divorce tactics.

What we are doing now hurts families. Em’s unique marriage and way of ultimately keeping her family together are certainly not for everyone, and there aren’t that many Ryans out there who would allow a spouse such freedom while also underwriting their independent lifestyle. Had she been a career woman and supported herself, would it have been more acceptable to naysayers? I wonder.

The bottom line is that people can orchestrate whatever type of marriage or commitment they want. They can also legally separate or not, however they choose. I am for thinking outside the box and for removing the massive suffering that comes from an unhappy marriage and the ugly that often comes with breaking up domestic partnerships. Surely, we can find better, healthier ways to do all these things.

[1] https://www.ncsl.org/human-services/common-law-marriage-by-state

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Becky Whetstone, Ph.D., is a licensed Marriage and Family Therapist in Arkansas and Texas* and is known as America’s Marriage Crisis Manager®. She is a former features writer and columnist for the San Antonio Express-News and has worked with thousands of couples to save their marriages. She can work with you, too, as a life coach if you’re not in Texas or Arkansas. She is also co-host of the YouTube Call Your Mother Relationship Show and has a telehealth private practice as a therapist and life coach via Zoom. To contact her, check out www.DoctorBecky.com and www.MarriageCrisisManager.com. Also, here is how to find her work on the Huffington Post. Don’t forget to follow her on Medium so you don’t miss a thing!

For licensure verification, find Becky Whetstone Cheairs.