Anaya Nolan
Texas law does not have a separate legal process for common-law divorce. Common-law couples can file for divorce in the same way as traditionally married couples, by meeting residency requirements and filing a divorce petition. To file for divorce in Texas, one spouse must have lived in the state for at least six months and in the county where the case is filed for at least 90 days. The couple can then file a divorce petition in the Texas county where residency has been established and pay the filing fee. The petitioner, or spouse filing for divorce, will need to complete an Original Petition for Divorce form, which asks the court to grant a divorce and may request the court to divide property and debts, award custody and support of minor children, and grant alimony. The respondent, or other spouse, will then need to be provided with a copy of the petition, known as a Waiver of Service, which they can sign instead of being served with divorce papers.
| Characteristics | Values |
|---|---|
| Residency requirements | One married party must be a Texas resident for at least six months and a resident of the county the papers are being filed in for at least 90 days prior to filing divorce papers |
| Divorce petition | File a petition in the Texas county where residency has been established and pay the filing fee |
| Proving common-law marriage | Declaration of Informal Marriage, Witness statements, Joint financial documents, Proof of cohabitation |
| Negotiate terms | The married parties negotiate the terms of the divorce so it can continue as an uncontested divorce |
| Appear in court | If the case is uncontested, you must appear in court to finalize it. If you and your married partner cannot agree, your case goes to trial, and the court will decide |
| Separation | If you and your partner physically separate in Texas but do nothing else to end the marriage, after two years from the separation date, Texas state law automatically assumes there never was a common-law marriage unless proven otherwise |
| Divorce forms | Original Petition for Divorce, Waiver of Service, Final Decree of Divorce |
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What You'll Learn
Residency requirements
To file for a common-law divorce in Texas, you must meet the state's residency requirements. These requirements are the same as for a traditional divorce. One of the spouses must be a Texas resident for at least six months, and a resident of the county where the divorce papers are filed for at least 90 days prior to filing. This applies whether you are filing for a common-law divorce or a traditional divorce.
You can prove your residency with a driver's license, car registration, voter registration, or similar forms of state-issued identification. If you are filing in a county where your spouse has lived for the past 90 days, and you live outside of Texas, you can still file for divorce in that county, as long as your spouse has lived in Texas for at least six months.
If you are filing for divorce in Texas without a lawyer ("pro se"), you can obtain the necessary forms from your local court clerk's office. You can also find Texas divorce forms online at the websites of the Texas Supreme Court and the Texas Legal Services Center. These forms are available for both contested and uncontested divorces, with different forms depending on whether or not there are children involved.
To start the divorce proceedings, one spouse must file a divorce petition with the court clerk's office in the relevant county. You may also need to submit a civil case information sheet and pay court fees, although if you do not have the financial resources, you can submit a Statement of Inability to Afford Payment of Court Costs. You can file the papers in person or electronically.
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Proving common-law marriage
Texas law recognises common-law marriages, also known as marriages without formalities or informal marriages, as a valid and legal way for a couple to marry.
If you are in a common-law marriage in Texas and want to end your marriage, you have two options:
- Two-year separation: If you and your partner physically separate but do nothing else to end the marriage, Texas state law will automatically assume there never was a common-law marriage unless proven otherwise.
- File for divorce: You can file for common-law divorce following Texas family law.
To prove a common-law marriage, you must show that the following requirements have been met:
- You are not already married, informally or formally, to anyone else.
- You live together.
- You agree that you are married.
- You hold yourselves out to others as a married couple.
There are several ways to prove common-law marriages exist:
- Declaration of Informal Marriage: This informal marriage form is the simplest way to prove a common-law marriage in Texas. You and your spouse go to your county clerk and complete a form, which is then filed.
- Witness statements: You can gather statements from witnesses who can attest and prove you lived together as spouses and were married.
- Joint financial documents: Documents showing joint bank accounts or joint utility accounts can provide evidence of common-law marriages.
- Proof of cohabitation: A lease, deed, or mortgage with both names is another way to prove an informal marriage.
- Other documents: For couples that choose not to declare their common-law marriage, documents such as tax returns, insurance policies, and lease agreements may be requested to prove the marriage.
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Negotiating terms
When negotiating the terms of a common law divorce in Texas, it's important to understand the specific requirements and options available to you. Here are some key considerations:
- Residency Requirements: To file for divorce in Texas, one spouse must meet the residency requirements. They must have been a permanent resident of Texas for at least six months and lived in the county where the divorce papers will be filed for at least 90 days prior to filing. These requirements are the same for both common law and traditional marriages.
- Grounds for Divorce: Texas recognizes two types of divorce: at-fault and no-fault. In an at-fault divorce, one spouse claims that the other's actions or behaviour led to the breakdown of the marriage. Texas law outlines specific fault-based grounds, including conviction of a felony, adultery, and cruelty. Proving fault can add complexity to the process but may result in a more favourable division of marital property for the "innocent" spouse. No-fault divorces, on the other hand, do not assign blame to either spouse and are generally less contentious.
- Division of Property: Texas is a "community property" state, which means that most property and money acquired during the marriage are considered community property and will be divided during the divorce. This division may not result in an equal 50/50 split but will be determined by the court as "just and right." Separate property, such as assets acquired before marriage or through inheritance, is generally retained by the individual spouse.
- Child Custody and Support: If there are minor children involved, the divorce process will include determining child custody, visitation rights, and child support arrangements. This can be a complex and emotionally charged aspect of the negotiation process, and it is advisable to seek legal advice to ensure the best interests of the children are prioritised.
- Spousal Maintenance: Spousal maintenance, also known as alimony, may be negotiated as part of the divorce terms. This involves one spouse providing financial support to the other, either temporarily or long-term, depending on the specific circumstances.
- Mediation and Legal Representation: It is recommended to seek legal advice during the negotiation process. An attorney can help ensure that your rights are protected and provide guidance on complex issues such as property division and spousal maintenance. Mediation services can also be utilised, where a neutral third party facilitates discussions and helps both parties reach an agreement.
Remember, the specific terms of a common law divorce in Texas will depend on the unique circumstances of each couple. It is always advisable to consult with a legal professional who can guide you through the process and ensure a fair and comprehensive negotiation of terms.
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Filing a divorce petition
To file for divorce in Texas, specific criteria must be met. Firstly, residency requirements must be satisfied. One spouse must have lived in Texas for at least six months, and in the county where the divorce papers are filed for at least 90 days. This can be proven with a driver's license, car and voter registration, or other forms of state-issued identification.
Once residency is established, a divorce petition must be filed in the relevant Texas county and a filing fee paid. There is only one official divorce form in Texas, approved by the Texas Supreme Court in 2017, for agreed divorces without real property or minor children. However, other good forms are available online for free. TexasLawHelp.org is a great resource for family law forms, and eFileTexas.gov is a free website that helps you create your forms through guided interviews.
If you cannot afford the expenses of filing for divorce, there are options available, such as a Statement of Inability to Afford Payment of Court Costs, also known as an affidavit of indigency.
The divorce petition will require at least one hearing to make a final decision on the issues in the divorce, such as property and debt distribution, and child custody arrangements. During the hearing, both parties present evidence and arguments to the court. If the divorce is uncontested and both parties have agreed on all issues, the non-filing party may not need to attend the hearing.
It is important to note that Texas has a 60-day "cooling-off" period before a divorce decree is signed, and there may be stipulations on how long parties must wait to remarry.
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Finalising the divorce
To finalise a common-law divorce in Texas, there are a few key steps to follow. Firstly, ensure that residency requirements are met, with one spouse being a Texas resident for at least six months and a resident of the county where the divorce papers will be filed for at least 90 days.
Next, file a divorce petition, also known as the 'Original Petition for Divorce', in the Texas county where residency has been established, and pay the required filing fee. This form is used to request the court to grant a divorce, divide property and debts, and determine matters such as child custody and support, and alimony. The respondent, or the other spouse, must then be provided with a copy of the petition, known as a 'Waiver of Service', which they can sign instead of being served with divorce papers.
After the petition has been filed and served, there is a 60-day waiting period before an uncontested divorce can be finalised. This waiting period can be waived in cases involving family violence. During this time, both parties can negotiate the terms of the divorce and attempt to reach an agreement, which can include the use of mediation services or specialised lawyers. If the divorce is uncontested, meaning both parties agree on all terms, a court hearing may not be necessary, and the judge will finalise the divorce by signing the 'Final Decree of Divorce'. This document outlines the court's orders regarding property division, alimony, child custody, and support.
However, if the spouses cannot agree, the case will go to trial, and the court will make the necessary decisions. In such cases, a final hearing will be held at least 60 days after filing the divorce petition, where both parties and their attorneys present evidence and arguments to defend their positions.
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Frequently asked questions
A common-law divorce in Texas is the same as a traditional divorce. There is no separate legal process for common-law divorce under Texas law.
To file for a common-law divorce in Texas, one of the parties must have been a resident of Texas for at least six months and a resident of the county where the case is filed for at least 90 days.
To file for a common-law divorce in Texas, you need to:
- Meet the residency requirements.
- File a divorce petition in the Texas county where residency has been established and pay the filing fee.
- Negotiate the terms of the divorce so it can continue as an uncontested divorce.
- Appear in court to finalize the divorce if the case is uncontested.
Texas law recognizes two types of property in a marriage: separate property and community property. Separate property includes property acquired before marriage, during the marriage by gift or inheritance, or received as recovery for personal injuries. Community property refers to all other property acquired during the marriage, regardless of which spouse acquired it.
The most common forms required for a divorce in Texas include the Original Petition for Divorce, Waiver of Service, and Final Decree of Divorce.
