Common Issues in Common Law Divorce

Texas is one of ten jurisdictions (nine states and the District of Columbia) in the country that recognizes common-law marriage. Each state has its own definitions of common law marriage. In Texas, the term “informal marriage” is also used.

Legality of a Common Law Marriage

To be legal, your Texas common law marriage must meet certain criteria:

  • You were not already married, either formally or informally
  • You and your partner were at least 18 when the marriage began
  • You agreed to be married and represented to others that you were married
  • You and your partner lived together in Texas as husband and wife

If you meet these qualifications, your marriage qualifies as common-law. You can file a Declaration of and Registration of Informal Marriage in the county where you live. This makes you married for all legal purposes such as taxes, financial matters and property ownership.

It’s important to note that your common law marriage will still be legal if you do not file the Declaration, as long as you meet the criteria above. Without the Declaration, however, you will find things more challenging if you later decide to split up.

Can I Just Walk Away From My Informal Marriage?

If your common law marriage ends, you may be able to just walk away with no formal legal process, especially if you never filed the Declaration and Registration form with the county clerk or you were living apart for at least two years. If you have children, property, or debts together, however, you will almost certainly need to file for divorce.

Texas law allows informally married couples to divorce in Texas. The process is the same as that for married couples with a license, with one exception. You must prove the existence of your common law marriage by showing that it meets the criteria above.

Pros and Cons of Common Law Divorce

By formally divorcing, you will protect your children, share in any jointly acquired property and cut off the other party’s rights to any property you acquire in the future, as in any divorce. For the most part, these are positive things.

Despite these benefits, some people in informal marriages try to deny the existence of the relationship, usually to prevent the other party from gaining access to community property or to avoid charges of bigamy. Denial is a common cause of contentious informal marriage divorces.

Get Help Choosing the Right Path for Your Common Law Marriage

Avoid the pitfalls of common law divorce by formalizing your common law marriage with a Declaration. If your partner refuses to sign such a document, and then you wind up facing divorce, you will want to ensure you have a strong lawyer by your side. Learn more by speaking with an experienced Texas family lawyer today.