Texas Common Law Marriage and Divorce

Texas Common Law agreement
Texas Common Law agreement
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Just about everyone has heard of “common law marriage.” But many people don’t really understand what the term means. For most of us, that’s not important. But if you are in this type of marriage and wanting to get out, it’s very important. The decisions you make could be both disappointing and costly. So today we will explain what you need to know about common law marriage and divorce in Texas. 

Texas recognizes informal marriage but the couple must meet legal requirements.
Texas recognizes informal marriage but the couple must meet legal requirements.

The first thing to know is that this IS a “real” marriage. The State will recognize common law marriage in Texas as both acceptable and legal. The key difference is that the marriage was done without any of the traditional steps. Specifically, the couple did not get a marriage license from the county, did not wait 72 hours, and did not have a ceremony performed by a legally qualified person. Texas law refers to common law marriage as “informal” marriage. 

However, to achieve recognition as a common law marriage, the couple does have to meet certain specific requirements. The partners must meet ALL of these requirements, which are as follow: 

  • Both partners were at least 18 years of age when the marriage was created;
  • Neither person was married, informally or formally, to anyone else at the time the marriage was created;
  • Both partners willingly agreed to be married;
  • The partners have lived in Texas as a married couple;
  • The partners have represented themselves to others as being married. 

How Do We Prove that We Represented Ourselves to Others as a Married Couple?

Don't confuse Common Law Marriage with a more formal Domestic Partnership.
Don’t confuse Common Law Marriage with a more formal Domestic Partnership.

The court makes this decision by reviewing a number of factors. For example, if the two of you lived together like a “regular” husband and wife. Specifically, this means the two of you did things like file a joint tax return, or sign a loan or rental agreement together. The court also will want to know if you actively told others about your common-law spouse and whether one partner took the last name of the other.

Note that Texas does NOT grant common law marriage status based upon how long you lived together. The fact you had children together also does not establish marital status. The State will not allow you to claim you just “assumed” the two of you were married. The Texas Family Code Section 2.401 discusses common law marriage in detail. 

Once a couple has met all of the State’s requirements, they can go to the office of the Tarrant County Clerk (or the county they live in) and sign a document called a Declaration of Informal Marriage. In a divorce and other legal matters, this document has the same authority as a traditional marriage license. 

The State considers this signed document valid proof of a legal, common law marriage. And you decide to end your “informal” marriage, it will be very important for you to get the help of a Fort Worth divorce attorney and get a legal, formal divorce. 

Your relationship is eligible for community property division if it meets common law marriage requirements
Your relationship is eligible for community property division if it meets common law marriage requirements

Texas is a community property state. This means that, with a few exceptions, when a couple divorces, ALL of the assets they acquired during the marriage will  be divided equitably. This is true regardless of which partner purchased the asset. 

However, if you cannot prove that you had a legal marriage, you lose the right to claim half of your marital property. Each partner will keep their personal property and the assets they are entitled to. You can imagine how complicated this can become. For example, who gets the house the two of you bought? 

Community property law also applies to inheritances. If your spouse passes away and you can prove you were married, you may be entitled to some of the estate. 

Be aware that if you have children together, it does not matter whether the two of you were legally married. The court will establish guidelines for child custody, child support, and visitation. 

Couples Who Separate Should Act Quickly

One significant difference with common law marriages is what happens if the couple separates. In a common law marriage, you have two years from the time of separation to file for divorce. If you do not take any action during that timeframe, the State presumes you never intended to be married. The court will probably deny your request to get a divorce.

In that event, you may lose your right to request alimony, child support, and a share of any assets or inheritances. You can still assert that you were legally married, but the court may be less sympathetic to your claim. 

Do I Have to Get a Common Law Marriage Divorce?

Strictly speaking, you do not have to go through the divorce process. In some common law marriages, the parties simply gather up their possessions and go their separate ways. They act as if the relationship never existed. Of course, this option is less expensive than hiring a family law attorney. 

But as we have seen, if you wish to claim property or inheritance from the relationship, this is usually not a good option. The common law marriage divorce also will be important if you expect to move into a higher income bracket or inherit some wealth in the future. With a legal divorce, you will be able to show that your ex-spouse has no claim to these new assets. 

Can I Deny the Existence of a Common Law Marriage?

Don't be frustrated by claims of common law marriage. Your attorney can provide the legal requirements to prove your case.
Don’t be frustrated by claims of common law marriage. Your attorney can provide the legal requirements to prove your case.

You have the right to claim that you were never legally married. As you might guess, one of the most common reasons someone would do this is to protect their wealth and property. In this case, your ex will probably hire an attorney to help with the case. 

You can prove your claim of no marriage if you can provide evidence that the two of you did not meet all of the requirements of informal marriage. For example, perhaps you were underage at the time of marriage. Of course, if you have previously signed a Declaration of Informal Marriage, you will not have a very strong case.  

Does Common Law Marriage Divorce Law Apply to Same-sex Couples?

Yes. Because same-sex marriages are now legal in Texas, all of the laws apply, including those about common law marriage divorce. For example, the couple must have lived in Texas after they married. 

Let Us Help You With Your Formal or Informal Divorce

Sean Lynch + Associates are ready to aggressively represent your family law rights and at a price, you can afford.

Divorce can be complicated and stressful. This is true for both formal and informal marriages. If you are considering ending your marriage, we are ready to provide you with expert legal help and a compassionate ear.

We have more than 10 years of award-winning experience serving the Fort Worth Near Southside and greater Tarrant County. To schedule a no-cost case consultation, contact our family law practice today, 817-668-5879