Skip to navigation
Put Your Trust in an Attorney Who Gets Things Done. SCHEDULE A CONSULTATION

Dissolving a Common-Law Marriage in Texas

Oct. 27, 2018

Common-Law Marriage and Divorce: What You Should Know

Texas is one of only nine U.S. states that recognize common-law marriage. The dissolution of this type of union can be fraught with many of the same types of issues that beset formally married couples who are contemplating divorce, so the services of a family law attorney can be very useful.

What Is a Common-Law Marriage?

A common-law marriage is a relationship between two people who are cohabiting and describe their relationship to family and friends as a marriage, but it hasn’t been formalized by a license or a ceremony. Common-law marriages can take place between same-sex couples as well as between a man and a woman. Each state that recognizes common-law marriage has its own sets of legal prerequisites and stipulations pertaining to this arrangement. The Lone Star State’s prerequisites are among the most liberal.

Some states stipulate continuous cohabitation over a certain period of time as a prerequisite for verifying the existence of a common-law marriage. In Texas, however, a common-law spouse only has to demonstrate that:

  • Both partners were older than 18 years of age at the time they entered into the relationship.

  • Neither partner was married either formally or informally at the commencement of the common-law marriage.

  • The two partners agreed to the marriage.

  • Following the initiation of the common-law marriage, the two partners lived in Texas as a married couple.

  • The two partners represented themselves to others as a married couple.

Additionally, Texas gives common-law spouses the option to sign and file a Declaration of Informal Marriage with the clerk of the county in which they reside. While the state does not use strict determinations that involve the chronological length of a relationship in stipulating the existence of a common-law marriage, if a couple has been separated for two years or more and has taken no formal steps to end the relationship, the state assumes the couple never intended to marry.

Proving the Existence of a Common-Law Marriage

Proving that a common-law marriage existed can be problematic after the fact, particularly if one of the two partners disputes its existence. Family courts often use inference to verify the existence of the relationship after determining that one person used the other individual’s surname. Courts also examine:

  • Joint tax returns

  • Co-signed leases

  • Joint purchases

  • Inclusion on health care and life insurance policies

  • Applications for public benefits

Common-Law Marriages and Property Rights

In Texas, common-law spouses are presumed to have the same rights in property disputes as those who’ve been more formally married. Texas is a community property state, which means that, with a few exceptions, all property, profits and debts acquired during a marriage are assumed to belong to both people.

This stipulation applies whether the marriage was contracted by a license or through common law. As a common-law spouse, you are entitled to benefit from the same equitable distribution of assets from which a formally married person is entitled.

If your common-law spouse dies intestate, you have the right to claim a portion of his or her estate as long as you can demonstrate the validity of your common-law marriage.

Common-Law Marriage and Divorce

Obtaining a divorce in a common-law marriage follows the same ground rules in Texas that apply to dissolutions of more formal marriages with the added complication that spouses must first prove to the family court that they were actually married. In Texas, there are several grounds for divorce in a common-law marriage, which include:

  • Insupportability

  • Mental or physical cruelty

  • Adultery

  • Felony conviction

  • Confinement in a mental hospital

  • Abandonment

  • Separation

Note that “living apart,” which is grounds for the dissolution of a more formal marriage, cannot apply because it is only relevant when spouses have lived separately for three years or more. In these situations, the state assumes that common-law spouses who’ve been living apart for two years or more never intended to wed.

If you’re thinking of ending your common-law marriage, contact a family law attorney at Stewart Law in Baytown, Texas for the support and assistance you need from a family law attorney.