Cameron Miranda
Texas recognizes common law or informal marriage, including same-sex marriage. There is no set time frame for how long a couple must cohabitate to establish a common law marriage. If a couple decides to end their common law marriage, they must file for divorce. The process of dissolving a common law marriage is similar to that of a formal marriage, and Texas law treats common law marriages similarly to formal unions in terms of divorce. All property acquired during a common law marriage is considered community property and is subject to division upon divorce.
| Characteristics | Values |
|---|---|
| Recognition of common-law marriage | Common law marriage is recognized in Texas, including same-sex marriages |
| Declaration of common-law marriage | Couples can sign a Declaration of Informal Marriage with the county clerk, which serves as valid proof of marriage |
| Divorce process | Dissolving a common law marriage in Texas requires the same legal process as a formal marriage, including filing for divorce and dividing community property |
| Property division | Texas is a community property state, meaning all assets and debts acquired during the marriage are subject to division upon divorce |
| Inheritance rights | In cases of death, common law spouses have the same inheritance rights as formal marriages, including a share of the estate |
| Child custody | Child custody arrangements in a common law divorce mirror those of a traditional divorce, including considerations for joint custody |
| Legal representation | While legal representation is not required for a common law divorce in Texas, it is recommended due to the potential complexity of these cases |
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What You'll Learn
Common law marriage proof
Texas recognizes common law marriages, also known as informal marriages, which are valid and legal without a formal ceremony or marriage license. To prove a common law marriage in Texas, couples must meet three key requirements simultaneously:
- Mutually agreeing to be married
- Subsequently cohabitating in Texas as a married couple
- Representing to others that they were married
The third point can be supported by testimony from friends, family, or community members who can attest that the couple introduced each other as husband and wife, wore wedding rings, or took similar actions. Additionally, evidence of a shared mailing address, joint purchases, joint tax returns, shared bank accounts, and insurance policies can help prove a common law marriage.
The easiest way to establish a common law marriage is for the couple to sign a Declaration of Informal Marriage with the county clerk, which serves as valid proof of marriage. However, if no such declaration was filed, and there is a dispute about the existence of a common law marriage, court proceedings may be necessary to prove the marriage. Texas law places a two-year statute of limitations on these types of proceedings.
Proving a common law marriage is crucial in divorce cases, as it impacts the division of assets and liabilities. Texas law considers all property acquired during a common law marriage as community property, which is subject to equitable distribution between the spouses. Similarly, in cases of inheritance, a common law spouse is entitled to a share of their deceased spouse's estate if they can prove their marriage.
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Property division
Texas is a community property state, which means that any property acquired by a couple during their marriage (regardless of who paid for it or whose name is on the title) is equally owned by both spouses. This includes any interest in a pension, retirement, profit-sharing, or other employee benefit plan during the marriage. However, it does not include inheritances, personal gifts, or assets owned prior to the marriage and maintained separately.
During a divorce, the court will divide community property as it deems "just and right," which means that the division must be fair under the circumstances. This does not necessarily mean that assets will be split 50/50. For example, in cases where one spouse has been convicted of family violence against the other spouse, or where there is a significant disparity in earning power between the spouses, the court may award a larger share of the community property to one spouse.
Texas law encourages spouses to reach an agreement out of court regarding the division of their property. If the spouses can come to a written settlement agreement, the court will review it and, if the terms are deemed just and right, will incorporate the agreement into the final divorce decree. If the court does not approve the settlement agreement, the judge can request a revised agreement or disregard the agreement and decide the matter after a hearing.
It is important to note that Texas does recognize common law or informal marriages, including same-sex marriages. If a common law marriage is proved, community property is divided in the same way as in a formal marriage. However, if court proceedings are not filed within two years of the separation, Texas law presumes the marriage never existed unless it is proven otherwise.
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Child custody
In Texas, if a child's parents are unmarried, the mother usually has automatic custody rights over the child, both physical and legal. Physical custody refers to the place where the child lives and under whose roof they stay. Legal custody, on the other hand, refers to the parent's ability to make life decisions for the child, including their education, medical care, and religion. An unmarried father has extremely limited rights, even if his name is on the birth certificate. However, once the father has been legally recognized, they have parental rights and are eligible for custody rights.
In Texas, there is no legal requirement for unwed parents to file for custody. Unmarried parents can handle custody without legal intervention unless disputes arise. In such cases, the help of attorneys and judges may be required. Although child custody laws in Texas for unmarried parents are similar to those for married parents, there are some differences. For example, when parents are married, paternity is assumed, but this is not the case for unmarried parents.
To establish paternity in Texas, a man can sign an Acknowledgement of Paternity (AOP) or undergo a DNA test. After establishing paternity, the father can petition the court for custody or visitation rights. It is important to note that signing the birth certificate may not be sufficient to prove paternity in Texas.
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Same-sex common law divorce
In Texas, dissolving a same-sex common law marriage follows the same legal process as a formal marriage. This means that same-sex couples in a common-law marriage must file for divorce.
Property and Assets
Texas law mandates that both spouses have the right to a just division of property acquired during the marriage, regardless of who paid for or owned it. All assets and income acquired by either spouse during the marriage are considered community property, including all property acquired during a common-law marriage. This does not include certain separate properties, such as inheritances, personal gifts, or assets owned prior to the marriage and maintained separately.
Children and Parenting
If you and your spouse have children together, you must talk to a lawyer, especially if your children have lived in another state or country for the last six months, as a Texas court may not have jurisdiction to make orders about your children. If your same-sex spouse has an adopted child, and only one of you formally adopted the child, it is recommended that you talk with an LGBTQ+ family law lawyer about parental rights and responsibilities.
Domestic Violence
Texas has laws that protect victims of family violence, including physical violence, sexual assault, and threats of violence. If you are experiencing family violence, you can apply for a protective order. You may also call the National Domestic Violence Hotline, the Family Violence Legal Line, Crime Victims, or Legal Aid for Survivors of Sexual Assault for legal assistance.
Legal Counsel
It is always recommended to seek legal counsel from an experienced divorce lawyer who can help you navigate the specific laws and circumstances of your jurisdiction.
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Hiring a lawyer
If you are considering a common-law divorce in Texas, it is essential to understand the legal complexities involved. While it is not mandatory to hire a lawyer for a common-law divorce in Texas, doing so can provide you with expert guidance and representation throughout the process. Here are some important considerations regarding hiring a lawyer:
Expertise in Family Law
Family law attorneys specialise in matters related to marriage, divorce, child custody, and asset division. When choosing a lawyer, look for someone with extensive experience in family law. They should be well-versed in Texas's unique common-law marriage and divorce statutes. This expertise will ensure they can effectively navigate the specific laws and circumstances of your case.
Proving Common-Law Marriage
In Texas, proving the existence of a common-law marriage during divorce proceedings can be challenging. An experienced lawyer can help you gather and present the necessary evidence to establish that a common-law marriage existed. This may include evidence such as filing taxes jointly, applying for loans as a married couple, wearing wedding rings, and holding themselves out as a married couple publicly.
Asset and Debt Division
Texas is a community property state, which means that all assets and debts acquired during the marriage are subject to equitable division upon divorce. A lawyer can help you navigate the complex process of identifying, valuing, and dividing these assets and liabilities. They can also assist in distinguishing community property from separate property, such as inheritances, personal gifts, or assets owned prior to the marriage.
Child Custody and Support
If children are involved, a lawyer can help you establish child custody and support arrangements that are in the best interests of the children. They can guide you through the legal process, including determining visitation rights, child support payments, and any other considerations specific to your situation.
Court Representation
In cases of contested divorces, where spouses do not agree on the terms of the divorce, hiring a lawyer is highly recommended. They can represent your interests in court, ensuring that your rights are protected. Lawyers can also assist in negotiating and drafting a settlement agreement that fairly resolves all issues related to the divorce.
It is important to remember that each divorce case is unique, and consulting with a qualified lawyer can help you understand your specific legal options and the best path forward.
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Frequently asked questions
A common-law marriage in Texas is a unique legal concept that allows couples to be recognised as married without a formal ceremony or license. To be considered a common-law marriage in Texas, the couple must meet three key elements.
You can prove your common-law marriage by completing a Declaration of Informal Marriage form, which is available at your county clerk's office. Filing this form is an easy way to prove your marriage, and it holds the same power as a marriage license. If you do not file this declaration, you must prove your marriage through other means, such as demonstrating that you lived as a married couple.
The process for a common-law divorce in Texas is similar to that of a formal marriage. If a common-law couple decides to separate, they must file for divorce. It is essential to create an inventory of all assets accumulated during the marriage and distinguish them from separate property. Both parties must submit this inventory during the discovery phase.
Texas is a community property state, meaning that all assets and debts acquired during the marriage are subject to a just and right division upon divorce. This division does not have to be equal but should be equitable based on the unique circumstances of each case.
