Gavin Howe
Texas is one of the few states that recognize common-law marriages. If you can prove you have a legal informal marriage, you would need to follow the same process to evict your common-law spouse as someone would in a traditional marriage. This involves obtaining a court order, which can be granted in cases of family violence or situations posing a threat to personal safety. A protective order is a common legal step in these circumstances, restricting the abusive party from specific actions, including residing in the shared home. Before commencing any legal proceedings, it is recommended to consult a family law attorney regarding eviction laws in your state.
| Characteristics | Values |
|---|---|
| Legal justification | Family violence or a threat to personal safety |
| Court order | Required |
| Protective order | Required |
| Legal representation | Recommended |
| Property ownership | Irrelevant |
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What You'll Learn
Common-law marriage in Texas
Texas is one of a few states that recognize common-law marriages. A common-law marriage, also known as a marriage without formalities or an informal marriage, is a valid and legal way for a couple to marry in Texas.
To be considered a common-law marriage in Texas, the couple must meet the following requirements:
- Both parties agree that they are married
- Both parties hold themselves out as a married couple to the public, usually through filing taxes together or consistently referring to each other as husband/wife
- Both parties are not already married, formally or informally, to anyone else
It is important to note that Texas law does not require a couple to be together for a specific period of time before they can declare themselves to be in a common-law marriage. However, if two years pass after a common-law marriage couple separates and neither party has taken any action to end the marriage (such as filing for divorce), Texas law presumes that the marriage never existed.
In terms of eviction, the same rules apply to common-law spouses as to traditionally married spouses. Neither spouse can legally force the other to leave the marital home without a court order. Certain legal grounds, such as instances of family violence or situations posing a threat to personal safety, could validate this severe action. These cases typically require a protective order application that includes allegations of family violence backed by evidence.
Therefore, if you are seeking to evict a common-law spouse in Texas, it is essential to consult with an experienced family law attorney who can guide you through the legal process and protect your rights.
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Protective orders
Texas is one of the few states that recognize common-law marriages. If you can prove you have a legal informal marriage, you would need to follow the same process to evict your common-law spouse as someone would in a traditional marriage.
To evict a spouse in Texas, you need legal justification and a court order. You cannot evict your spouse just because you don't get along anymore. However, if you fear for your safety and your spouse has committed acts of family violence, you can ask the court for a protective order that includes a kick-out order. Protective orders are court-issued mandates that restrict the abusive party from specific actions, including residing in the shared home.
To obtain a protective order, you must provide an affidavit with proof that family violence has occurred. You must also show that you resided in the home in the past 30 days and that family violence occurred within 30 days of applying for the protective order. You must also present evidence of family violence or the threat thereof. If the court determines it to be necessary, it will issue the protective order, which will instruct the respondent to take or refrain from specific actions.
A protective order is a serious matter. There must be more than dislike and hurt feelings to seek one. The consequences of violating a protective order are also serious, including potential time in jail. A spouse violating a protective order may be arrested and face criminal charges, underlining the serious consequences, including potential jail time. Violations must be immediately reported to law enforcement.
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Property rights
Texas is one of a few states that recognize common-law marriages. If you and your spouse intend to be married, agree that you are married, and represent yourselves as married in public, then you are considered married in the eyes of the law. This carries all the legal ramifications of any marriage.
Texas is a community property state, meaning that all property is considered community property unless it is proven to be separate. Separate property is that which was either bought prior to marriage, bought with an inheritance, or received as a gift. If a house was purchased during the marriage, it is considered community property, and neither spouse can evict the other without a court order.
Even if the home is exclusively in one spouse's name, they cannot legally evict the other without a court order. If you are locked out of your home, you can call the police, and they may tell your spouse that they must let you back in.
If there is a history of family violence, a spouse can ask the court for a protective order that includes a kick-out order. This may involve the issuance of an ex parte protective order in cases where immediate protection is needed.
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Domestic violence
Texas law provides certain protections for victims of domestic violence. If you are a victim of family violence in Texas, you have the right to seek police or emergency assistance at any time. A landlord cannot evict or penalize you for the presence of police or emergency assistance at your residence due to family violence.
If you are a victim of family violence, you may be able to get deposits for utilities such as gas, telephone, and electricity services waived. You can also seek housing protections under the Violence Against Women Act (VAWA). VAWA provides housing protections for survivors of domestic violence, dating violence, sexual assault, or stalking. These protections apply to all individuals, regardless of sex, sexual orientation, or gender identity. If you live in public housing, a housing authority property, a voucher program, or other federally assisted housing, VAWA may protect your right to stay in your home.
If you are facing domestic violence in a common-law marriage in Texas, you would need to follow the same legal process as someone in a traditional marriage to evict your spouse. This involves obtaining a court order and protective order. You must be able to demonstrate a pattern or history of violence or threats to convince a court that future violence is imminent. If you are renting, you also have the right to break your lease.
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Court orders
Texas is one of a few states that recognize common-law marriages. If you and your spouse intend to be married, agree that you are married, and represent yourselves as married in public, then you are considered married in the eyes of the law. This carries the same legal ramifications as any marriage.
In Texas, neither spouse can legally force the other to leave the marital home without a court order. A court order is required to force someone from their residence unless there is a domestic violence component. Certain legal grounds, such as instances of family violence, could validate this severe action. These cases typically require a protective order application that includes allegations of family violence backed by evidence.
Applying for a protective order seeking relief to remove the spouse from the house is a necessary step to legally evict a spouse from the marital home. Texas Family Code Sec. 85.021 stipulates that a protective order may grant exclusive possession of the family residence to one party and may order the other spouse to vacate the premises if the residence is owned or leased by the party denied possession.
If you fear for your safety and your spouse has committed acts of family violence, you can ask the court for a protective order that includes a kick-out order. It should be noted that telling the court you're afraid because your spouse has yelled at you in the past and you think they will abuse you will typically not be viewed as grounds for eviction. You must have a pattern or history of violence or threats to convince a court that future violence is imminent.
If you can prove you have a legal informal marriage, you would need to follow the same process to evict your spouse as someone would in a traditional marriage. Before filing for an eviction or emergency protection order, consult a family law attorney regarding eviction laws in your state. Document any instances of domestic violence or abuse, and gather evidence of separate property ownership.
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Frequently asked questions
No, you cannot evict your spouse in Texas if both names are on the lease or mortgage. A court order is required to force someone from their residence unless there is a domestic violence component.
Texas considers all property community property until it is proven to be separate property during a Texas divorce. That means, even if you purchased your home prior to marriage and your spouse’s name isn’t even on the deed or mortgage, you cannot kick them out or change the locks until you go through the divorce process.
You must have a pattern or history of violence or threats to convince a court that future violence is imminent. Telling the court you’re afraid because your spouse has yelled at you in the past will typically not be viewed as grounds for eviction.
You will need to get a court order, and an experienced family law attorney can explain what steps you will need to take and how to prove your case. The legal process will vary depending on the urgency of the case and will require that you get some form of protective order.
If you get home and find the locks have been changed, you can go to the police and report what has happened. They will force your spouse to let you back in.
