Texas is one of only a few states to recognize common law marriage for opposite-sex and same-sex couples. Common law marriage is an important consideration for inheritance purposes, child custody, and more. It differes from ceremonial marriage in that the married parties forego state procedures for marriage such as purchasing a marriage license. While common law marriage does not come into play in most divorces, it still warrants inclusion in this “Texas Divorce 101” series because it is outlined in the Texas Family Code and, when proven, requires a divorce just the same as a formal marriage. Common law divorce in Texas follows many of the same divorce processes required of couples in a traditional marriage. This guide will help you understand divorce in common law marriages in Texas.
As mentioned above, common law marriage, also known as “informal marriage”, must be proven before proceeding with a divorce. Although common law marriage is known as marriage without formalities, or informal marriage, it is still considered a valid and legal marriage under Texas law. Couples that have entered into common law marriage may follow some of the same legal processes as officially married couples, such as filing a joint tax return. However, if it is determined that no informal marriage exists, then you are saved the time, expense and stress of going through a divorce. Although,
In order to prove that an informal marriage in Texas exists, Texas family code states that the parties must have evidence proving one of the following (Tex. Fam. Code §2.401):
With that information in mind, let’s dive deeper into both options.
The first way of proving the existence of a common law marriage is by completing, filing and registering a “Declaration of Informal Marriage” with a county clerk. The declaration itself is a form prescribed by the Bureau of Vital Statistics which can be found at the office of the county clerk in the county in which you live. Tex. Fam. Code §2.402. The declaration form requires each party to provide the following information:
After providing the personal information above, the parties must indicate “true” or “false” to each of the following in response to the statement: “The other party is not related to me as:”
Finally, the declaration form must be sworn to under oath, indicated by the parties’ signatures, and the county clerk must certify the place and date that the sworn oath was made. Once all of these steps have been completed, the county clerk may prepare a certificate of informal marriage for the parties and record the time at which the marriage certificate or declaration is issued.
The county clerk may not certify the declaration, however, if either party omits any required information on the form, either party is under the age of 18, or if either party checked “false” in response to any of the statements of relationship to the other party. Tex. Fam. Code §2.404.
The second way to prove an informal marriage exists is by agreement of the parties. After the parties agree that they are married, the married coupley must live together as spouses in Texas for any period of time, no matter how short, and also represent to others that they were married. Tex. Fam. Code §2.401. If both parties agree that these requirements have been met, then there should not be an issue with proceeding with a common law divorce in Texas. If one party disagrees that a marital relationship exists, though, then there must be some type of documented proof of each requirement to prove to the court that the parties are, in fact, in an informal marriage. In such cases, a marriage certificate could be required.
The agreement of the parties must clearly show that the parties intended to create an immediate and permanent marriage relationship and legal marriage, and not merely a temporary cohabitation that could be ended by either party at any time. In re C.M.V., 479 S.W.3d 352, 360 (Tex.App.—El Paso 2015, no pet.). Further, an agreement to be married cannot be inferred from the mere fact that the parties live together, and the specific circumstances of each case will determine whether or not the requirements have been met.
In the event that one of the parties in the informal marriage is married to another person at the time of the agreement or declaration, then no valid informal marriage may exist. Tex. Fam. Code §2.401(d). A person can only be married to one person at a time, whether formally or informally.
If an informal marriage is proven, then the parties must proceed through a formal divorce process and, in the petition, put forth proof of the informal marriage in Texas. In the common law divorce proceeding, the parties will determine a just and right property division for the community property acquired during the informal marriage. If the parties have children together, child custody determinations must be made, including the establishment of conservatorship, possession and access (visitation), and child support for the children through the divorce.
Community property laws also apply to common law spouses who are getting divorced. Texas is a community property state. This means that all marital property acquired during a marriage will be divided the same as if the couple were formally married. Debts accumulated during a marriage will also be divided between the married couple if common law divorce in Texas occurs. A common law spouse is also entitled to inherit a share of the decedent’s estate if the other spouse dies without a will. A common law spouse will have to prove that they are common law married, however.
In order to proceed with the common law divorce, the suit must be started within two years from the date the parties separated or stopped living together. If not commenced before the second anniversary of their separation, it is presumed that the parties never entered into an agreement to be married or a legal marriage in the first place.
Tex. Fam. Code §2.401(b).
One of our knowledgeable divorce attorneys at Ball Morse Lowe, PLLC, can help you determine whether or not an informal marriage exists in your situation, and then the next best steps for you to take.
If you’re facing a common law divorce in Texas, you’ll need family law attorneys who understand the legalities of marriages without formalities like a marriage ceremony. Even though common law spouses are subject to many of the same divorce laws as traditional married couples under Texas family code, it’s important to know that some differences exist.
Our law firm can help guide you through the divorce process if you’re filing for divorce from your common law spouse. Give our law office a call today to see how we can best serve your needs.
The information and material in this article is for informational purposes only and is not intended as a substitute for legal advice.