Do I Need A Divorce For My Common-Law Marriage?

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Read about Texas laws regarding common law marriages and divorces.

Texas laws regarding common-law marriages can be a bit confusing. And when it comes to Texas common law divorce, the rules can be downright dizzying. There are only 12 states that recognize common law marriage and Texas is one of them. Oftentimes, when two people are “not really married” it can come as a surprise to the partner who is served with real divorce papers. So do you need a common law divorce? Maybe. It will depend on a few important factors.

How Texas Views Common-Law Marriage

First, you should know that the state of Texas treats common law marriage just like a traditional marriage. The Texas Family Code defines a common-law marriage in Texas as an informal marriage. Some people call an informal marriage by a different name – marriage without formalities.

You are extended the same legal rights and are bound to the same responsibilities as you would be in a formal marriage. 

Likewise, when it comes to a common-law divorce, the same rules apply. Property –– such as real estate, vehicles, retirement accounts, and savings accounts –– are divided according to community property rules. The courts will allocate debts and obligations evenly to both parties. Finally, child custody, child support, and visitation are all determined by the courts.

You may want to get legal advice from a divorce attorney or law firm to find out more about your rights.

Proving The Existence Of A Common Law Marriage

A traditional wedding involves going to the courthouse to officially document the legal union of two people. And although there is a form called the Declaration of Informal Marriage that you can fill out to document your informal marriage (similar to a marriage license that the state issues in a formal marriage), most of the time in a common-law divorce, there is no piece of paper that proves there was a union. 

Since there is no official document that proves the marriage, the person filing for common law divorce will need to show that the common law marriage exists. The few items that a judge will consider are:

  1. Was the couple living together?
  2. Did the couple hold themselves out to the world as married?
  3. Did both parties agree to be spouses at the time of the informal marriage?
  4. Were both parties at least 18 years of age?
  5. Was either party already in a formal or informal marriage with anyone else at the time of the common law marriage?

You will have to prove that your marriage met these requirements to establish that the existence of your common-law marriage.

Living Together In A Common Law Marriage

There are no requirements for how long a couple must live together or what they must do while living together in order to be considered husband and wife in a Texas common law marriage. You need to prove that both of you were clearly more than roommates or housemates. However, you do not have to show that you had an ideal marriage situation or family situation when you and your spouse lived together.

Agreement To Be Married

The courts will assess if you and your spouse did agree to get married. Holding yourselves out to the world as married means that both of you behaved as husband and wife while you were in public. Either of you might have introduced the other person as your spouse or told people you were a married couple. Both of you might have filed joint tax returns, whether state or federal. One of you may have started using your partner’s last name. You might have an insurance policy that names your partner as the beneficiary spouse. Both of you might have signed loan applications or rental agreements that described you as a couple. A court will infer this to mean that you or your spouse agreed to be married.

Texas family law states that anyone who wants to prove a common-law marriage must do so within two years after the date the parties separated. Only then will a court apply divorce laws around child custody, alimony, or property division. After that, the legal presumption the Texas law court will take is that there was no common law marriage.

Why Proving The Existence Of A Common Law Marriage In Texas Is An Issue

If you or your common-law spouse can prove that you meet the requirements of being common law married, either of you may want to take advantage of property division rules in Texas family law during a divorce. Texas is one of the 9 community property states. Hence, Texas law starts from the legal presumption of an even split of marital property between spouses. Your attorney must argue in state courts about why this split will not be equitable if you do not agree.

Sometimes you might want to rebut that you were ever common-law married. This could be to prevent your ex-spouse from exercising their rights to division of marital property. Other times, it might be to prove that you did not practice bigamy.

You may have to present the case that you and your ex were not living together for more than two years before one of you filed the claim for a common-law marriage. You can also show that either of you did not have the capacity to get married. The third way is to prove that one of you was already married during the common law marriage.

However, it will be harder to fight your case and disprove a common law marriage if you and your spouse submitted a Declaration of Informal Marriage to the county clerk.

The declaration would have included some details, including your full name, age, and identity. Part of it includes a declaration that both of you are not related in any way including adoption. Stepparents or stepchildren also cannot be in a common-law marriage. Finally, it will state that both of you consider yourselves married. This will make it hard for you to argue that you never agreed that you were married to the other person.

How To Proceed In A Common-Law Divorce

If the person initiating the divorce is able to prove the existence of common law marriage, then the divorce will move ahead. That person can use social media accounts, screenshots, leases, tax returns, photos, even witnesses to prove their case. Will you be ready to defend yourself?

Remember, you might not have considered your partnership to be traditional. However, if a judge deems it to be official, then your upcoming divorce proceedings will require a real attorney.  If you have questions about any of these items we would be more than happy to help you with a no-cost 30-minute consultation.


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