Although Texas allows common-law marriage, few know what it takes to be common-law married. But, when you successfully get married through common law, how do you get a common-law marriage divorce? Since a common-law marriage is legally valid, common-law divorce works like an ordinary divorce, except that you may first have to prove the marriage exists.

The lawyers at The Larson Law Office can work with you to determine whether you meet the common-law marriage requirements. Regardless, we can help you find a way forward, offering tailored, honest advice and direct, responsive service. Reach out to get started today.

How Do You Become Common Law Married?

To get common law married in Texas, you must:

Agree to marry your partner,
Live together as spouses in the state, and
Tell others that you are married.

While the Texas statute defining common-law marriage specifies “husband and wife,” same-sex couples can enter into common-law marriages on equal terms to opposite-sex couples.

You cannot become common law married:

If you are already in a legally valid marriage,
If you are underage,
By living together for a set period of years, and
If you do not affirmatively present to others as married.

You do not default into common-law marriage. Both partners must be able to marry, intend to be married, and tell others they are married.

Although optional, you can complete a declaration of informal marriage to register your common-law marriage. In the declaration, you:

Confirm you are not too closely related to marry,
Identify the date the marriage began, and
Sign oaths declaring that you are married.

You file the declaration with the state to make it official.

How Do You Get a Common-Law Marriage Divorce in Texas?

Common-law marriage divorce in Texas is the same as any other divorce, with one significant exception: you may first need to prove your marriage exists. If you can make this showing, the informality of common-law marriage brings a second challenge: proving when you got married.

If you file a declaration of informal marriage, you can rely on it to prove the marriage exists and from what date it began. Otherwise, you may need to find evidence to convince a judge.

Proving You Are Married

If you and your partner agree you are married, you can sign a statement as proof. But if your partner claims you are not married, you may need specific evidence.

For example, such evidence might include:

Jointly filed tax returns as a married couple,
Applications for life insurance or loans indicating that you are married,

Jointly owned accounts or property,
Screenshots of messages or social media posts acknowledging the marriage,
Statements from people who you told you were married, and
Testimony about the marriage.

You need to convince a judge that, in light of all the circumstances, you both intended to enter and actually entered into a common-law marriage.

Proving the Date of Marriage

Your partner may contest the date the marriage began, even if they agree it occurred. Knowing what date the marriage began is essential because, from that date forward, most property either spouse acquired is shared community property. When you divorce, you divide the community but not separate property.

Divorce

To divorce, you’ll need to address:

Child custody,
Child and spousal support, and
Property division.

Should you meet the narrow legal requirements, you may file for an annulment or a declaration that the marriage is void instead of getting a divorce.

What Do You Risk If You Cannot Prove the Marriage Existed?

Most couples do not qualify for common-law marriage in Texas. Divorce ends marriages only. So, what do you risk when you separate from a long-term partner to whom you were not married?

Paternity

Your rights to your children are not affected by whether you and the other parent are or have ever been married. However, the law does not automatically establish paternity for an unmarried father. In fact, by law, a mother should not list the father on the birth certificate unless the couple is married.

The father can acknowledge paternity to establish his relationship to the child. If the apparent father disputes that he is the father, the other parent may have to file court documents to establish paternity.

Property

Establishing who owns property you have shared during a long-term relationship can be difficult. This difficulty can be compounded by:

The name listed on ownership documents,
Both partners contributing to the property, and
The non-owner partner working to improve the property.

And, if one partner dies, the other typically does not inherit from them unless they are married or a Will exists making the partner a beneficiary.

Spousal Support

You also do not qualify for spousal support if you were never someone’s spouse. Spousal support can be a valuable tool in divorce negotiations. You may be in a tougher spot if you never married.

How Can You Protect Your Rights If Unmarried?

Before you separate, you can create a cohabitation agreement laying out each partner’s rights and responsibilities in the relationship. Cohabitation agreements are similar to prenuptial agreements without the promise of marriage.

If you are already in the separation process, consult a lawyer as soon as possible. Based on the situation, your lawyer can help you identify your options and enforce your rights.

Getting Help Ending a Common-Law Marriage

Common-law marriage divorce is more complicated than ordinary divorce. It involves proving not only that you are married but on what date you got married. Erik and Diana of The Larson Law Office can help you end your long-term relationship, regardless of your exact legal status. Contact us for an unbiased evaluation of whether you have established a common-law marriage and your rights in your relationship.

Resources:

Texas Family Code § 2.402, link (declaration of informal marriage).

Texas Family Code § 3.001, link (separate property).

Texas Family Code § 3.002, link (community property).

Texas Family Code § 160.204, link (when paternity is presumed).

Texas Health and Safety Code § 192.005, link (only husband goes on the birth certificate).

Common-Law Marriage Divorce in Texas