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Divorce for Couples in Informal Marriages

In general, the term "common law marriage" refers to a couple who live together for a period of time and who present themselves to family, friends, and their community as a married couple, but who never had a formal ceremony or filed a marriage license with the state. The state of Texas recognizes common law marriages, otherwise known as informal marriages, as a legal way to marry, having the same effect as formal marriages both during the marriage and in divorce.

Elements of a Common Law Marriage

Some people believe that if you simply live together for a certain period of time, such as seven years, you automatically have a “common law” marriage.  This notion is incorrect. In order to establish an informal marriage, couples need to meet certain requirements.

According to the Texas Family Code, Chapter 2.401, the parties must:

  • File a Declaration and Registration of Informal Marriage with the County Clerk's office. This document has the same power as a marriage license; or
  • The parties agree to be married;
  • Thereafter they live together as spouses in the state of Texas; and
  • Hold themselves to others as husband and wife.

If you do not file a Declaration and Registration of Informal Marriage, then the party who wants to establish the marriage must prove its existence and has the burden of proof. This can be done in a number of ways, but all the three elements of an informal marriage have to be met.

You "hold yourself out as married" by actions such as introducing or referring to one another as husband and wife, using the same last name, or providing documents such as leases signed as husband and wife, joint tax returns, purchasing real estate as married couples, and insurance policies naming the other person as spouse.

Once established, an informal marriage legally exists and has the same legal effect as a formal marriage. Therefore, it cannot be dissolved quite as informally as it began.

Common Law Marriage and Divorce

In order to end the informal marriage, absent an agreement to the contrary, the couple will need a divorce proceeding. The main difference between an informal marriage divorce and a regular divorce is proof establishing the existence of the marriage and the date that it began.

The person seeking the divorce needs to establish the date of marriage so that he or she is entitled to certain rights received in divorces. This may include:

If the other party denies the existence of a marriage, then it will be necessary to have an evidentiary hearing to determine whether or not the marriage exists before proceeding on the typical issues in a divorce case.

Just as in any divorce, in marriage the family court deals with issues affecting the children, such as custody, support, and visitation. Property issues and debts must also be divided. The divorce procedure is the same as in a formal marriage. The process is initiated by a complaint or petition and after deciding the issues, the court enters a judgment ending the marriage. Of course, if the court does not find that there is a marriage, then there is no divorce.

Our experienced, skilled and caring team of divorce attorneys are here to help you. If you have questions or would like more information about divorce and common law marriage, please contact us today.