Anaya Nolan
Texas recognizes common-law marriages, which are legal marriages without a ceremony or other formalities. To establish a common-law marriage in Texas, couples must agree to be married, live together as husband and wife, and publicly present as a married couple. While Texas recognizes common-law marriages, there is no such thing as a common-law divorce. If a common-law couple decides to separate, they must go through the same legal divorce process as a traditionally married couple. This involves proving to the court that they met the requirements for a common-law marriage, as this determines whether they are subject to Texas' community property laws, which govern the division of assets and debts.
| Characteristics | Values |
|---|---|
| Is there common law divorce in Texas? | No, there is no common law divorce in Texas. |
| What is required to prove a common-law marriage? | Both parties must agree to be married, live together as husband and wife, and "hold out" to others that they are married. |
| What constitutes as "holding out"? | Introducing each other as spouses, wearing rings on ring fingers, signing credit applications as a married couple, filing joint tax returns, adding someone to a "family" membership, and addressing each other as spouses on envelopes. |
| What happens to property and debts in a common-law marriage? | If a common-law marriage is proved, property and debts are divided in the same way as a formal marriage. If no common-law marriage is proved, there is no marital property or debts to divide. |
| Is there a time limit to prove a common-law marriage? | Yes, there is a two-year statute of limitations to prove a common-law marriage after separation. |
| What is the divorce process for a common-law marriage? | The same as a traditional divorce, except common-law couples must prove they met the requirements to be considered common-law married. |
| Is there a requirement to hire an attorney for a common-law divorce? | No, but it is strongly advised due to the complexity of divorce proceedings. |
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What You'll Learn
Common-law divorce doesn't exist in Texas
Texas recognizes common-law marriages, which means that if a couple decides to split up, they must go through the same divorce process as a traditionally married couple. This is because, once the state legally recognizes an informal marriage, you need to get a regular divorce just like couples who had a ceremonial marriage.
A common-law marriage does not simply disappear if the parties physically separate. However, even when a couple satisfies all the requirements of a common-law marriage, they may still not be permitted to file for divorce. There is a rebuttable presumption that no marriage exists unless a suit is commenced to prove the marriage before the second anniversary of the parties' separation.
To prove a common-law marriage, both parties must agree that they are married, live together as husband and wife, and "hold out" to others that they are married. This means that they must represent to others that they are married, for example, by introducing each other as spouses, wearing rings on their ring fingers, or signing credit applications as a married couple.
If a common-law marriage is not established and the couple later decides to separate, they will not have the same legal protections as a married couple. This can cause problems with property division, custody arrangements, and spousal support. Therefore, it is important to obtain a divorce for a common-law marriage in Texas to ensure that your interests are protected and to avoid problems down the road.
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Common-law marriage requirements
Texas recognizes common-law marriages, which means that a couple must get a divorce to legally dissolve their union. There is no such thing as a "common-law divorce". Once a state legally recognizes an informal marriage, the couple must get a regular divorce, just like couples who participated in a ceremonial marriage.
There are two ways to establish a common-law marriage in Texas:
- The first way is to sign a "declaration of informal marriage" with the county clerk's office.
- The second way is outlined in Section 2.401 of the Texas Family Code, which states that the parties must agree to be married, live together in Texas as husband and wife, and hold themselves out to the public as husband and wife.
To prove a common-law marriage, couples must show that all three conditions exist simultaneously. These include agreeing that they are married, living together as husband and wife, and "holding out" to others that they are a married couple. Actions and conduct by each person are examined, such as introducing each other as spouses, wearing rings on ring fingers, or signing credit applications as a married couple. Evidence that supports the "holding out" element also supports an agreement to be married.
If a common-law couple decides to split up, they must file for divorce. If court proceedings are not filed within two years of the separation, Texas law presumes that a common-law marriage never existed unless proven otherwise.
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Proving a common-law marriage
Texas recognises common-law marriages, and ending one is similar to ending a formal marriage. If a common-law couple decides to split up, they must file for divorce. However, there is no such thing as a "common-law divorce".
To prove a common-law marriage in Texas, the following requirements must be met:
- Both parties must agree that they are married.
- Both parties must live together as husband and wife.
- Both parties must "hold out" to others that they are married. This means that they must represent to others that they are married. This can be done through words or actions, such as introducing each other as spouses, wearing rings on ring fingers, or signing credit applications as a married couple.
Documents such as lease agreements, tax returns, and insurance policies may also be used to prove a common-law marriage. If there is a dispute about whether a common-law marriage existed, it may be necessary to go to court. Texas law places a two-year statute of limitations on these types of proceedings. This means that if court proceedings are not filed within two years of the separation, Texas law presumes that the marriage never existed unless it is proven otherwise.
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Property division in common-law divorces
Texas law states that all property acquired during a marriage, formal or common law, is considered community property. This means that if a common-law marriage is proved, the property will be divided in the same way as it would be for a legally married couple. It does not matter which spouse made the purchase or whose name is on the title.
In Texas, the standard for dividing community property and debts is a "just and right" division. This means that the division of property must be fair under the circumstances and does not necessarily mean that assets will be split 50/50. For example, in certain cases, one spouse may receive a larger share of the community property. Texas courts consider factors such as fault in the breakup of the marriage (e.g., drug abuse, adultery, waste of community assets) and the disparity of earning power between the spouses when deciding on a "just and right" division.
It is important to note that Texas law encourages spouses to reach an agreement out of court regarding the division of their property. If the spouses can agree on a written settlement, the court will review it. If the court deems the agreement "just and right," they will incorporate it into the final divorce decree. If the court does not approve, the judge may request a revised agreement or decide on the matter after a hearing.
Additionally, Texas law specifies that separate property refers to assets that were not acquired as part of the marriage. In the case of a common-law marriage, if no marriage is proved, there is no marital property or debts to divide. Each party will keep their personal property and remain individually responsible for their debts.
To prove a common-law marriage in Texas, both parties must agree that they are married, live together as husband and wife, and "hold out" to others that they are married. This means that they must represent themselves as a married couple to the outside world. Actions such as introducing each other as spouses, wearing rings on ring fingers, signing credit applications as a married couple, filing joint tax returns, or adding each other to memberships can all qualify as "holding out" as a married couple.
In summary, property division in a common-law divorce in Texas follows the same principles as a formal marriage divorce. The court will divide community property, which includes all property acquired during the marriage, in a manner that is deemed "just and right" under the circumstances. Separate property, which belongs to each individual, will remain with that person.
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Child custody and support in common-law divorces
Texas law treats common-law marriages as equal to formal marriages. As such, common-law couples must file for divorce if they decide to split up. If court proceedings are not initiated within two years of separation, Texas law presumes the marriage never existed.
When it comes to child custody and support in common-law divorces, Texas law establishes that mothers and fathers have equal rights. The law presumes that parents should be "joint managing conservators", meaning they share decision-making responsibilities about a child. However, this does not necessarily imply an equal split of time between parents. If there is family violence or a parent is absent, one parent may be named the "sole managing conservator".
Texas courts tend to favour awarding shared custody, prioritising the best interests of the child. They consider factors such as financial stability, emotional support, connection to the child, and who is the primary caretaker. If the child has special needs, the court also factors in who can best meet those requirements. In some cases, one parent may receive sole custody if the other is deemed unfit.
To establish child custody in a common-law divorce, it is essential to create a legally binding agreement. Failing to do so can lead to difficulties for both parents and the child. Mediation-based strategies can help minimise conflict when resolving issues related to healthcare, education, and living arrangements.
TexasLawHelp.org provides valuable resources, including definitions, common questions, and forms related to child custody. The State Bar of Texas also offers guidance on child custody and support, including a manual with over 750 family law forms and practice notes.
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Frequently asked questions
No, there is no common law divorce in Texas. If a couple's common law marriage is recognised by the state, they will need to go through the same divorce process as a traditionally married couple.
To prove a common law marriage in Texas, you must show that you:
- Agreed to be married
- Lived together as husband and wife
- 'Held out' to others that you were married
Evidence that can be used to prove a common law marriage includes:
- Joint tax returns
- Joint bank accounts
- Joint ownership of property
- Use of the same last name
- Statements from friends, family, and others who believe the couple to be married
The divorce process is the same for traditionally married and common law married couples. However, common law couples must first prove to the court that they met the requirements to be considered common law married.
If there is no divorce, there is no written agreement that legally protects your interests. This means that common law spouses have no claim to child custody, child support, spousal support, or property division.
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