Common Law Divorce in Texas

Common law divorce in Texas is a complicated process having its own set of rules and regulations. The US has the highest number of people parting their ways forever, and each state follows separate laws and guidelines to do so legally. Only a few states in US consider an informal marriage to be legal. If a informal law married couple no longer wishes to be married to the common law spouse, they may part ways from one another. Texas is one such state, where this type of marriages are recognized.

Common law marriage makes a couple legally married in every way, even if they never had a wedding or never obtained a marriage license. It is extremely important for the couple to prove the existence of their marriage within two years of the end of their cohabited relationship. Else, there is an assumption made by the court that the marriage never existed. If the couple decide to dissolve the marriage, they must address the issues of assets, debts and children. To make sure that these determinants are legally recognized, they should follow the formal proceedings of drifting apart from their partners.

If a couple has an informal marriage in Texas, but later moves to another state, they must end their relationship in the new state of residence to dissolve the marriage – even if that state does not recognize common law marriages.

Qualification for Common Law Marriages in Texas

  • Both parties must have agreed to be married
  • The couple must have held themselves out to the community as ‘husband and wife’, either by introducing each other as husband and wife or by filing a joint income tax return.
  • Both parties must be 18 years of age
  • The couple must live together

Provisions of Common Law Divorce in Texas

  • Either spouse in the marriage has two years (after separation) to file an action to prove that your marriage did exist
  • Must have separated after September 1, 1989
  • Must be still responsible for assets, debt, and the care of your children
  • In order to make sure that the spouse is legally responsible for what is owed to the other spouse, end of relation is preferred, rather than a legal separation or annulment.
  • In case of spousal abuse in the informal marriage, there are provisions that can protect the spouse under the law, such as requesting a protective order.

Process of Filing a Informal Divorce in Texas

  • Ascertain if you are in an informal marriage
  • Decide if parting ways is necessary in your marriage. Filing for a divorce is recommended if both the spouses have children or property out of the marriage, debts.
  • Download or collect forms from local district court like ‘original petition’ and an ‘affidavit of consent’ of the partner to sign stating that the end of the relationship is not contested. There are other forms as well, depending on whether you have children or not.
  • Fill the form with proper information and file an original petition for the end of the marriage with the district court of the county, where either of the spouses have lived for three months.
  • Attend court hearings to determine the appropriate division of assets, and rights and obligations regarding children.
  • The petitioner must ask for a citation and serve the respondent with the citation and a copy of your filed petition. A private process server can be hired to deliver it to the respondent. A sheriff or a constable in the county can also be used. A private process server will return an affidavit of service to the petitioner that should be filed with the court.

Few Important Aspects

Those couples who do not have any children or property may file a petition for the informal marriage partition of the couples themselves in the absence of assistance of a lawyer. After the petition is filed, the court clerk will give a copy of the petition and the court summons the petitioner. If the divorcing couple has children or marital property, then it is advisable to approach a lawyer and follow the attorney’s instructions to solve issues regarding:

  • Fair division of marital assets
  • Child custody orders
  • Child support
  • Alimony/ Spousal support
  • Debt division

Points to be Noted in a Texas Common Law Divorce

  • Living together alone cannot result in a common-law marriage. You must cohabit, hold out to the public that you are married and intend to create a common-law marriage.
  • Consult an attorney to handle your case to avoid legal complexities
  • Be aware of the state laws and guidelines
  • Resolve issues of childcare arrangement and property division in a way that both partners agree. This will help to reduce cost and do away with court case.
  • Consider using a mediator instead of going to the court. The mediator can easily solve the case by taking a neutral stride between the parties without giving any biased decision.

Common law divorce in Texas involves the same rights, obligations and procedures for ending a relationship, whether the marriage is made under informal law or not. In other words, if a marriage takes place in accordance with the law, it must go through the same process as any other marriage. However, the informally married couples must prove that they had a common law marriage before filing a petition for ending their relationship.