Common Law Marriage and Divorce in Texas


Many people have heard of the concept of a “common law” marriage, but most states have actually rescinded the rights of couples to engage in a common law marriage in recent decades. Texas, however, is one of the few states that still allows for common law marriages to be recognized.

By their nature, common law marriages occur without the participation of the government, unlike traditional marriages. There are specific requirements, though, for who is allowed to engage in a common law union.

The state of Texas requires that any common law marriage must meet certain criteria as outlined below:

  • The parties must agree to be married, and thereafter they must
  • Live together in this state as husband and wife, and
  • In that state, represent to others that they are married OR
  • The parties must file a Declaration and Registration of Informal Marriage with the County Clerk.

There are a variety of ways to prove these factors, but most commonly this includes actions such as filing joint taxes or listing your partner as a spouse on insurance forms or as a spouse on forms requiring you to name a beneficiary.

Both parties to the marriage must also be of sound mind, meaning they have the mental capacity to understand they are in a common law marriage. No one under the age of 18 can be in a common law marriage even if their parents or guardians consented to the union. And no person can be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to another person.

In many common law states, you must live in the common law marriage for a period of time as defined by law. You should note that Texas does not have a time requirement. All you need to do is prove the criteria as outlined above.

Dissolution of a common law marriage in Texas

To dissolve a common law marriage in Texas, you cannot just end it the same way you started it. In the eyes of the law, a common law marriage is no different than a formal legal marriage. This means that the couple will need to go through a divorce proceeding to end their union.

The main difference between a common law divorce and a regular divorce is proof. The party filing the divorce will need to prove that the couple was in a common law marriage so that they will be entitled to rights and privileges that come with the dissolution of a marriage, such as a division of community property, potential support payments, and more. If the other party denies the existence of the common law marriage, then it will be necessary to have a hearing to determine whether or not the marriage exists before proceeding on the standard issues in a divorce case.

If you are party to a common law marriage in the state of Texas, a divorce can be especially complex due to the potentially subjective nature of proving your marriage. Be sure to contact a skilled family law attorney like those at the Hollwarth Law Firm to help ensure your divorce is handled fairly and efficiently.

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