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Do I Need a Divorce for Common Law Marriage in Texas?

Last Updated on October 4, 2023 by Benson Varghese

Texas recognizes common law marriage, which means you will need a divorce to legally dissolve the union. That’s the only way to ensure that your interests are protected and to avoid problems down the road. In this article, we will answer common questions about informal marriages and explain why it’s important to obtain a divorce for common law marriage in Texas and how to go about doing so.

But first, please watch this video by family law attorney Turner Thornton.

What is common law marriage in Texas?

A common law marriage, also known as an informal marriage, is not officiated by a clergy member or performed through a civil ceremony and there is no marriage license. However, it is recognized as a valid marriage in Texas as long as certain legal requirements are met. There are two ways to establish a common law marriage in Texas:

1. The first way to establish a common law marriage in Texas is to sign a "declaration of informal marriage" with the county clerk's office. Once signed, you and your spouse are considered common law married.

2. The second way to establish a common law marriage is outlined in Section 2.401 of the Texas Family Code and 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.

Why does it matter if a couple is established as common law married?

If a common law marriage is established, then the spouses hold all of the same legal rights as a couple who have a marriage license. These rights become important in the event of a death or a divorce, especially if you share children, property, and assets.

If common law marriage is not established and the couple later decides to separate, then they will not have the same legal protections as a married couple. This can cause problems with things like property division, custody arrangements, and spousal support.

How do you end a common law marriage in Texas?

Because a common law marriage has the same legal status as traditional marriage, common law couples must go through the divorce process to end their union. It is the same divorce process as a traditional divorce, except common law couples will have to prove to the court that they met the requirements to be considered common law married. This is important because, if you are considered common law married, then you are subject to Texas' community property laws, which means all assets and debts are subject to a fair and equitable split.

Can't we just go our separate ways and not mess with a divorce?

Yes, a common law marriage can end without a divorce if no one pursues it. Both sides can just walk away and act as though the marriage never existed. However, this can be problematic if you share children, property, and assets.

If there is no divorce, then there is no written agreement that legally protects your interests. This means that common law spouses do not have any claim to child custody, child support, spousal support, or property division. This can lead to problems down the road if you or your former spouse decide to pursue legal action.

How do you get a divorce for common law marriage in Texas?

The process for getting a divorce for common law marriage in Texas is exactly the same as a formal officiated marriage. You will need to file a petition for divorce with the court and serve your spouse. That will get the process started. At the end of the process, the judge will make decisions about property division, child custody, and spousal support. Once the judge signs off on the divorce decree, you will be officially divorced. A divorce attorney can handle the entire process for you and help ensure that your rights are protected every step of the way.

What if my partner denies that we were common law married?

The reason people deny the existence of a common law marriage is to prevent their partner from getting any of the benefits that come with being married, such as community property.

If your partner denies that you were common law married, then you will have to prove to the court that your relationship met the requirements for a common law marriage. This can be done by providing evidence like joint bank accounts, tax filings, and utility bills. If you can prove to the court that you were common law married, then the court will treat you the same as any other married couple going through a divorce. An experienced family law attorney can help with a divorce for common law marriage in Texas.

Do I need to hire an attorney for a divorce for common law marriage in Texas?

In Texas, you do not have to hire an attorney for a divorce for common law marriage. However, it is strongly advised. Divorces are complicated. Even if you and your spouse are in agreement about almost everything, there are still a lot of legal hoops to jump through.

It is always a good idea to consult with an attorney to make sure you are taking care of everything correctly and not missing anything important. If you have children or complex financial assets, it is especially important to hire an experienced family law attorney to help you through the process.

How to Prove a Common Law Marriage in Texas

If you believe that you have a common law marriage in Texas, you must be able to prove the existence of the marriage to the satisfaction of the court. This can be done through evidence such as:

- Joint tax returns
- Joint bank accounts
- Joint ownership of property
- Use of the same last name
- Statements from friends, family, and other individuals who believe the couple to be married


Need a divorce for common law marriage? Contact Us.

If you are seeking a divorce for a common law marriage in Texas, it’s important to understand the process and protect your interests. The attorneys at Varghese Summersett Family Law Group can help. We have experience handling common law divorces and can help you navigate the process from start to finish. Contact us today at 817-900-3220 to schedule a consultation. We serve Fort Worth and the surrounding areas. We’ll be happy to answer your questions and help you get started on the next phase of your life.
Turner Thornton
Turner Thornton
Turner Thornton is a well-known family law attorney in Fort Worth who leads the Varghese Summersett Family Law Group. Turner has successfully guided hundreds of individuals and families through the most trying period of their lives as a skilled negotiator and savvy litigator. Turner Thornton concentrates his practice on family law, including divorce, child custody, contempt, and modification cases. He is experienced in handling estates with significant and unique assets that can be difficult to value. He finds amicable resolutions where possible to conserve his client's resources, but knows how to take the gloves off if the situation calls for it. He has had remarkable results in and outside of the courtroom based largely on his ability and desire to understand his clients' needs and guide them on the pathway to what success looks like for them.

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