Keith Mack
Texas recognizes common-law marriages, which are considered legal marriages without a ceremony or other formalities. Common-law marriages have specific requirements, including living together, agreeing that they are married, and holding themselves out to others as a married couple. To end a common-law marriage in Texas, couples must go through a similar divorce process as a formal marriage, including filing a petition for divorce and dividing assets and debts. However, before initiating the divorce process, common-law couples must prove that they met the requirements to be considered married. This proof is crucial in determining property and inheritance rights during the divorce proceedings.
| Characteristics | Values |
|---|---|
| Process of divorce | The process of divorcing a common-law marriage is the same as a formal marriage, except that common-law couples must prove to the court that they met the requirements to be considered common-law married. |
| Division of assets | Texas's community property laws apply to common-law marriages, meaning all assets and debts are subject to a fair and equitable split. |
| Child custody | Child custody in a common-law marriage divorce mirrors that of a traditional divorce, including considerations for joint custody arrangements. |
| Spousal support | Spousal support is also considered in common-law marriage divorces. |
| Time limit for divorce | If court proceedings are not filed within two years of separation, Texas law presumes a common-law marriage never existed unless proven otherwise. |
| Proof of common-law marriage | Proof of a common-law marriage can include introducing each other as spouses, wearing rings, signing credit applications as a married couple, filing joint tax returns, and more. |
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What You'll Learn
Proving a common-law marriage
Documents such as lease agreements, tax returns, and insurance policies may also be used to prove a common-law marriage. If there is no declaration of a common-law marriage and there is a dispute about its existence, it may be necessary to go to court to prove the marriage. Texas law places a two-year statute of limitations on these types of proceedings. This means that if two years pass after a common-law marriage couple separates and neither party has filed anything to prove the marriage, the state presumes that the marriage never existed.
It is important to note that proving a common-law marriage can have significant implications for the division of property and liabilities during a divorce. If a common-law marriage is proved, the property and debts accumulated during the marriage will be divided as if the parties were formally married. On the other hand, if no common-law marriage is proved, there will be no marital property or debts to divide, and each party will keep their separate property and remain individually responsible for their debts.
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Division of assets and debts
Texas law states that all property acquired during a marriage, formal or common law, is community property. This includes real estate, businesses, cars, money, retirement accounts, furniture, and other things earned or purchased by either spouse during the marriage. It does not matter which spouse's earnings were used to purchase the property or which spouse's name is on the title. Retirement benefits earned by either spouse during the marriage are also considered community property.
Separate debt is debt that one spouse acquired before the marriage. The law states that separate property cannot be divided. Once something is proven to be separate property, the judge must confirm it as the separate property of that spouse. However, if money earned during the marriage is spent on improving the separate property of one spouse, the other spouse may be able to argue that they should get credit for a portion of the money spent.
Community debt is debt acquired during the marriage. The law states that community property and debt should be divided "just and right" when getting divorced. This means that the division is decided on a case-by-case basis, considering the specific facts of the marriage and the rights of each party and any children of the marriage. It is a common misconception that each spouse will receive an equal share of each community asset. In certain cases, one spouse may receive a larger share or certain assets may be awarded to only one of the spouses.
If you and your spouse agree on how to split your property and debt, the judge will usually approve your agreement. You will fill out the Final Decree of Divorce form to reflect your agreement. It is important that the legal description of the property in the Final Decree of Divorce is written exactly as it is on the most recent deed. You may need to take additional steps after the divorce to transfer vehicle titles or real estate deeds.
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Child custody
If a common-law marriage has been established in Texas, the couple will be treated legally as any other married couple. Therefore, when a common-law couple decides to divorce or separate, child custody is negotiated in much the same way as in any other divorce case.
It is in the best interest of both parents and the child to establish a formal custody arrangement. A custody agreement will help protect both parents and the child and prevent any future difficulties. A family law attorney can help establish a custody agreement and deal with any residual legal issues associated with the common-law marriage.
In some instances, one parent may receive sole custody if the other parent is deemed unfit. The courts will always consider the best interest of the child as a first priority when establishing a custody arrangement between parents. Although the court will listen to the wishes of each parent, either could be deemed unfit if there is a record of domestic violence, incapable financial status, or other issues that may prevent a person from being a suitable parent. In these situations, the other parent will likely be awarded sole custody, and the deemed unfit parent will be granted partial custody or visitation rights.
Texas law presumes that parents should be "joint managing conservators" in the event of a divorce. This means that they would share decision-making responsibilities about a child. It does not necessarily mean that their time would be evenly split between parents. If there is family violence or a parent is absent, one parent may be named a "sole managing conservator".
Upon request by one of the parties in a custody suit, Texas law requires the court to interview a child who is at least twelve years old about their wishes regarding custody. The court must still make a decision that is in the best interest of the child, but the child can at least have the opportunity to have their preference heard.
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Spousal support
Texas spousal assistance requires financial hardship and one of the qualifying conditions, such as a long-term marriage with reduced earning capability, a physical or mental handicap, or domestic violence. Spousal support depends on marriage length and other factors. Support can last five years, between 10 and 20 years, and ten years for a marriage beyond 30.
Financial situations, distinct property, child support, age and health of each spouse, education, talents, and domestic violence history are considered by courts when assessing spousal support. In Texas, spousal support, sometimes referred to as alimony, can play a crucial role in ensuring a fair outcome for divorcing couples. However, there’s a subtle difference between these terms.
Spousal maintenance is the legal term used in Texas for court-ordered financial assistance paid by one spouse to the other after a divorce, regardless of gender. There is no formula to decide how much spousal maintenance will be awarded, but there is a cap of $5000 per month or 20% of the spouse's average monthly gross income, whichever is lower. The court may order that spousal maintenance remains in effect for the time the spouse is unable to earn sufficient income to provide for their minimum reasonable needs.
Because the circumstances surrounding every marriage and divorce are different, there is no hard and fast rule used to calculate the amount of spousal maintenance one spouse will be ordered to pay another. However, Texas law recognises that one spouse may sacrifice career advancement or earning potential to support the family unit during a marriage. This could involve staying home to raise children, managing the household, or supporting the other spouse's education or career goals.
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Legal counsel
Texas recognizes common-law marriages, which means that a divorce is necessary to dissolve the union. The process of getting a divorce for a common-law marriage is the same as for a formal marriage. However, common-law couples will have to prove to the court that they met the requirements to be considered married under common law.
To prove a common-law marriage in Texas, three requirements must be met simultaneously:
- Both parties must agree that they are married.
- The couple must live together as husband and wife.
- Both parties must "'hold out' to others that they are married. This means actively representing to others that they are a married couple. Actions such as introducing each other as spouses, wearing rings on ring fingers, signing credit applications as a married couple, filing joint tax returns, and adding each other to memberships can all qualify as "holding out".
If a common-law marriage is proved, community property laws apply, and all assets and debts are subject to a fair and equitable split. If no common-law marriage is proved, there is no marital property or debts to divide, and each party will keep their personal property and remain individually responsible for their debts.
It is important to seek legal counsel from an experienced divorce lawyer who can navigate the specific laws and circumstances of the jurisdiction where the divorce is taking place. A divorce attorney can handle the entire process and help ensure that your rights are protected.
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Frequently asked questions
A common-law marriage in Texas is a legal marriage without a ceremony or other formalities. It is created only if certain specific legal requirements are met. Both partners must be eligible for marriage and must agree that they are married, live together as husband and wife, and "hold out" to others that they are a married couple.
The process for getting a divorce for a common-law marriage in Texas is the same as for a formal officiated marriage. You will need to file a petition for divorce with the court and serve your spouse. At the end of the process, the judge will make decisions about property division, child custody, and spousal support.
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. The concept of community property plays a critical role in divorce proceedings, with all assets and income acquired by either spouse during the marriage being considered community property, except for certain items considered separate property, such as inheritances, personal gifts, or assets owned prior to the marriage and maintained separately.
