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

Also known as an informal marriage, Texas recognizes common law marriage as a legal option for couples in the state. Not all states recognize common law marriages. Common law marriage does not require a marriage ceremony or for you to submit a marriage license to the Clerk of Court. However, you and your spouse must be at least 18 years of age to enter into an informal marriage and both must be unmarried at the time. If you are sure you are in a common law marriage, you need a divorce in Texas.

Common Law Marriage is the Same as Formal Marriage

There are not two classes of marriage in Texas. Either you are married, or you are not. The method by which you became married does not create “real marriage” versus “common law marriage.”

Are You Common Law Married in Texas?

The first thing you must do is ascertain if you are in a common-law marriage. There are a number of factors that determine if a common law marriage exists, but the most important factor is that you and your spouse live together in Texas and hold each other out to friends, family and the public as a married couple. There is no magic number of years to live together, nor is having children together an absolute indication of common-law marriage. Also, since common law marriage is by definition “informal,” the date of the marriage may be difficult to ascertain. If you meet these criteria, you must file a petition for divorce in Texas.

Additional Factors Determine Common Law Marital Status

Following the necessity to live together and to hold each other out to friends, family and the public as a married couple, additional factors may influence a court to make a ruling that the couple is or is not married, should a disagreement arise. The most telling of these is filing a federal tax return as Married. After that, receiving spousal benefits from employer benefits, designations of the beneficiary as a spouse, taking the surname of the other spouse, as well as many other factors.

Texas’ Law and Community Property

In Texas, all property acquired during a marriage is presumed to be community property unless proven otherwise by overwhelming evidence to the contrary. Community property is owned jointly by the spouses. Common law marriage claims are often litigated when property purchased during the marriage is the subject of claims from both spouses.

Divorce and its Legal Standing for Common Law Marriage

You should file for divorce from your common law spouse to legally end the relationship. If there is little to no property and no children of the marriage, a divorce can be relatively simple. It is important to have the end of the marriage recorded in the legal records. If you do not “divorce” your common law spouse, you could be held liable for debts that arose after the relationship ended.

However, if you share children, assets, debt or any real property the divorce will need to address those issues in a legal framework. It may be a friendly divorce but if one spouse claims that an informal marriage existed and the other spouse claims there was no marriage, then complicated, messy lawsuits can result.

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