Common Law Marriage In Texas Divorce

A number of people are not aware of the requirements they need to meet for them to get into a common law marriage.  Fewer still know very much about common law divorce in Texas.

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State of Texas Common Law Marriage

They assume that for a common law marriage to be official it has to involve a ceremony of some sort involving a priest or rabbi.  The only requirements for a couple to be considered common law married include:

  • The two of you lived together
  • You have introduced yourself to friends and family as husband and wife
  • You must have filed taxes together and even have joint bank accounts
  • You must be 18 years old, of sound mind and must not be married to someone else

If you meet all these requirements, it means that you and your partner can divorce. In Texas, a common law marriage is called an Informal Marriage under the Family Code.

Definition of “Living Together”

In Texas, it assumed that you lived together as husband and wife only if you maintained a household like husband and wives do.  The number of days you lived together like husband and wife is not important in Texas. You may live together for just a day and that would be enough to be considered a common law marriage.  In other states where common law marriage is recognized, there is a requirement for minimal number of days that a couple has lived together is considered.

To define common law marriage in Texas, see also…

Texas Family Code Sec. 2.401 Proof Of Informal Marriage

Sec. 2.401. PROOF OF INFORMAL MARRIAGE. (a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:

(1) a declaration of their marriage has been signed as provided by this subchapter; or

(2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.

(b) If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.

(c) A person under 18 years of age may not:

(1) be a party to an informal marriage; or

(2) execute a declaration of informal marriage under Section 2.402.

(d) A person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party to the informal marriage or declaration of an informal marriage, as applicable. –

Common Law Divorce Texas

Dissolution of Common Law Marriage Texas

Do common law marriages require a divorce in Texas?

Since a common law marriage is considered a legal marriage, the only way to end that marriage is through divorce, death or annulment.  That means that the party that wants to leave the marriage will have to file for divorce. In addition, during the divorce the property and debts accumulated during the duration of the marriage is community property.  Community property should be divided during divorce. This is actually the reason why some people want to prove the existence of a common law marriage and some other people deny it exists. If you can prove the marriage did not exist, then you will not have to divide what is considered as community property.

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Proving common law marriage in Texas.

When a common law marriage is contested it is up to the party alleging a marriage to prove it actually existed.   If that party convinces the court that a marriage existed, then the divorce is allowed to proceed. The following are some ways you can prove a marriage existed:

  • Your spouse’s family calls you daughter-in-law or son-in-law
  • Either party has referred to the other as their spouse while obtaining a life insurance policy
  • Cards the parties have sent each other where they refer to each other as wife or husband
  • Purchasing a home and signing the deed as husband and wife

Other states that recognize common law marriages.

Texas is not the only state that recognizes these types of marriages in the United States.  Other states like Idaho, Alabama, Utah, South Carolina, Rhode Island, Iowa and more recognize common law marriages.  However, the requirements for such marriages may vary in every state that recognizes them.