Kara Sears
Texas recognizes common-law marriages, which are formed when both parties agree that they are married, live together as spouses, and present themselves to others as married. If a common-law couple in Texas decides to split up, they must file for divorce, similar to a formal marriage. However, if no legal action is taken within two years of separation, Texas law presumes the common-law marriage never existed, making it harder to prove otherwise. Divorcing common-law couples face unique challenges, especially when dividing property, assets, and debts, as there is no written agreement to legally protect their interests.
| Characteristics | Values |
|---|---|
| Process of ending common-law marriage | Similar to ending a formal marriage. Common-law couples must file for divorce. |
| Time limit for filing for divorce | If court proceedings are not filed within two years of separation, Texas law presumes the marriage never existed unless proven otherwise. |
| Division of assets | If a common-law marriage is proven, assets are divided in the same way as for formally married couples. |
| Division of debts | Debts accumulated during a common-law marriage are divided between the spouses. |
| Inheritance | If married at common law, a spouse is entitled to inherit from their spouse if the latter died without a will. |
| Evidence of common-law marriage | 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 |
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What You'll Learn
Common law marriage requirements
Texas is one of the few states that recognize common-law marriages. These informal unions, which don’t require a marriage license or traditional ceremony, can have serious legal consequences, especially when they dissolve.
To establish a common-law marriage in Texas, certain legal requirements must be met. There is a misconception that if couples live together for a certain amount of time, they are considered common-law married. This is not true in Texas or anywhere else.
To prove the existence of a common-law marriage, both parties must:
- Agree that they are married: There must be evidence establishing a present, immediate, and permanent intention to have a marital relationship. An agreement to get married in the future is insufficient. Spoken words or actions and conduct by each person can fulfill this requirement. For example, introducing each other as spouses, wearing rings on ring fingers, or signing credit applications as a married couple could separately qualify as “holding out” to others as married.
- Live together as husband and wife: The couple must cohabitate in Texas as spouses. There is no requirement for how long the couple must live together.
- "Hold out" to others that they are married: The couple must represent themselves to others as married. This can be achieved through reputation and declaration. The belief by the couple's community, including friends and family, that the couple is married can serve as evidence. Additionally, the couple can declare themselves as married by signing a “declaration of informal marriage” with the county clerk’s office.
If a common-law marriage is proved, community property and debts are divided the same as if the parties were formally married. If a common law marriage cannot be proven, there is no marital property or debts to divide, and the parties will keep their personal property and remain individually responsible for their debts.
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 a common-law marriage never existed unless it is proven otherwise.
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Proving a common law marriage
To prove a common-law marriage in Texas, the following conditions 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. Spoken words can fulfill this requirement, but actions and conduct by each person are also examined. For example, introducing each other as spouses, wearing rings on ring fingers, or signing credit applications as a married couple could separately qualify as "holding out" to others that they are married.
Documents such as lease agreements, tax returns, and insurance policies may also be requested to prove a common-law marriage. If no declaration was filed and there is a dispute as to whether a common-law marriage existed, 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. If court proceedings are not filed within two years of the separation, Texas law presumes that the marriage never existed unless proven otherwise.
Proving a common-law marriage can affect whether partners who end their relationship can split property and liabilities between them. If a common-law marriage is proven, community property is divided in the same way as if the parties were formally married. Debts accumulated during a common-law marriage are also divided between the spouses. If no common-law marriage is proven, there is no marital property or debts to divide, and the parties will remain individually responsible for their debts.
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Property division
If a common-law marriage is proven in Texas, property division is handled in the same way as a formal marriage. This means that all property and debt acquired during the marriage is considered community property and is subject to a fair and equitable split. This includes all assets and debts, regardless of which spouse made the purchase or whose name is on the title. Inheritance is also included in community property, meaning that if one spouse dies without a will, the other spouse is entitled to inherit from them.
However, if a common-law marriage is not proven, there is no marital property or debt to divide. In this case, the parties 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, and "hold out" to others that they are a married couple. This can include introducing each other as spouses, wearing rings on ring fingers, signing documents as a married couple, filing joint tax returns, having joint bank accounts, or owning property jointly.
It is important to note that if court proceedings are not filed within two years of the separation, Texas law presumes that the common-law marriage never existed, making it harder to prove the marriage and divide property and assets. Therefore, it is advisable to seek legal assistance when navigating property division during the breakup of a common-law marriage in Texas.
Unmarried couples breaking up in Texas, whether in a common-law marriage or not, often encounter challenges when it comes to dividing property. Texas law does not offer the same legal protections to cohabiting partners as it does to married couples. Therefore, understanding how property is divided when a relationship ends is crucial to protecting one's rights and avoiding conflicts.
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Child custody
In Texas, if a couple with children decides to end a common-law marriage, they must file for divorce. This process involves navigating complex issues such as property division, spousal support, and child custody to protect both parties' legal rights.
Texas law treats a common-law marriage as a legal marriage, and therefore, in the event of a divorce, child custody is negotiated in a similar way to any other divorce case. It is crucial for separating common-law couples with children to seek legal guidance to establish a legally binding child custody agreement. This agreement protects both the parents and the child, and failure to establish one can result in difficulties over time.
When determining child custody, Texas courts prioritize the best interests of the child, often favouring joint custody (joint managing conservatorship) to allow both parents an active role in their child's life. This approach helps maintain stability, emotional support, and consistency for the child after separation. However, in cases where joint custody might not be in the child's best interest, such as situations involving neglect, abuse, or instability, the court may grant sole managing conservatorship to one parent.
In Texas, the child's preferences may be considered if they are at least 12 years old, although the court makes the final determination. When deciding conservatorship, courts consider factors such as the child's emotional and physical needs, each parent's ability to provide a stable environment, and the level of parental involvement. Evidence of domestic violence, substance abuse, or neglect can significantly impact a parent's custodial rights.
Texas law requires both parents to financially support their children. Child support obligations are determined based on the non-custodial parent's income, using a percentage-based model. The standard rates are 20% of net income for one child, 25% for two, 30% for three, and up to 40% for five or more children. If a parent fails to comply with a court-ordered child support obligation, they may face legal consequences, including fines, driver's license suspension, or even incarceration.
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Divorce process
The divorce process for common-law marriages in Texas is similar to that of a traditional marriage. If a common-law couple decides to split up, they must file for divorce. The process begins by filing a petition for divorce with the court and serving your spouse.
It is important to note that if court proceedings are not initiated within two years of the separation, Texas law presumes the common-law marriage never existed unless proven otherwise. Therefore, it is advisable to not delay seeking a divorce if separated from a common-law spouse.
During the divorce process, it is crucial to prove the existence of a common-law marriage, as it affects the division of property and liabilities. Texas law considers all property acquired during a common-law marriage as community property, which is subject to a fair and equitable split. This includes debts accumulated during the marriage. If a common-law marriage cannot be proven, there is no marital property or debts to divide, and each party retains their individual assets and responsibilities.
To prove a common-law marriage, evidence such as joint tax returns, joint bank accounts, joint ownership of property, use of the same last name, and statements from individuals who believe the couple to be married can be presented.
At the end of the divorce process, a judge will make decisions about property division, child custody, and spousal support. Once the judge approves the divorce decree, the couple will be officially divorced. It is recommended to consult a divorce attorney to ensure one's rights are protected throughout the process, especially in cases involving children or complex financial assets.
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Frequently asked questions
Common-law marriage is a legal marriage without a formal ceremony. Both parties must agree that they are married, live together as husband and wife, and present themselves as married to others.
You can prove a common-law marriage through various forms of evidence, including joint tax returns, bank accounts, property ownership, use of the same last name, statements from friends and family, and other documents like lease agreements and insurance policies.
Common-law couples in Texas must file for divorce, similar to formally married couples. They will have to prove their common-law marriage status to the court and divide assets and debts.
If you don't take legal action within two years of separation, Texas law presumes the common-law marriage never existed. This can make it harder to prove the marriage and protect your interests regarding children, property, and assets.
Yes, TexasLawHelp.org provides an Affidavit of Informal Marriage form for visitation purposes, and sample forms for registering a common-law marriage with your county clerk's office.
