Divorce from a Common Law Marriage in Texas?

Many people believe that they can become married by virtue of only living together. “I have lived with my boy/girlfriend for the last 12 years, do we have to get a divorce?” Although the answer to this question is relatively simple, there are some complications that you should keep in mind.

A common law marriage (or “Informal Marriage” as it is called in Texas) can be established in two ways:

  1. By the actual signing of a “Declaration of Marriage” under Texas Family Code, Section 2.402 — by signing the Declaration, the law will treat the parties as having been married for all purposes; or,
  2. By creating an Informal Marriage under Texas Family Code, Section 2.401 (a) (2).

What are the rules for common law marriage in Texas?

Under the second scenario, the Informal Marriage is created by: (a) forming an agreement that the parties are to be married, (b) by living together (or “co-habitating”), and (c) by holding themselves out to the public as being married. It also bears noting that the parties must have been “unmarried” at the time of their agreement. If they were actually married, then the second marriage would be void under Texas Family Code, Section 6.202. Interestingly, you could overcome the impediment to marriage by actually ending the prior marriage(s) and then continue living together as husband and wife (and continue holding yourselves out as being married), then the marriage would be essentially ratified under Texas Family Code, Section 6.202(b). It is also important to note that in order to have the requisite consent to marriage, the persons forming the agreement to be married must be over the age of eighteen (18).

As a result, clearly, you cannot become married only by living together. This is true, even if you have a child or children together. More is required. So, the answer to the question: “Should we file for a Divorce if we have just lived together?” is probably “no.” You should also be aware that Texas law provides for a cut-off period for establishing the common-law or informal marriage. After you have stopped living together, your “spouse” will have two years within which to “establish” the “Informal Marriage.” Texas Family Code, Section 2.401(b). Significantly, this provision applies in other contexts other than just a Divorce — perhaps, say a Probate or Administration of an Estate, too, for example.

Do I have any rights as a common law wife?

Many people believe that after the two years is up, there is no need to get a divorce (even if they were common-law married). In my opinion, this is a bad idea. A rebuttable presumption is just that — rebuttable. Let me give you an example that maybe you haven’t thought about. You start living together with your boyfriend and at some point agree to be married, you (or he) start telling others that you are married. The law now treats you as being married. Let’s take it a step further and say that you decide to separate and not get a Divorce. What happens if you have significant property? What happens if you die? You may have an incentive for the other person to file a divorce action, a challenge to your probate, or show up at an administration of your estate later on. The rebuttable presumption is nice, but this is not the same an actual “adjudication,” or court decision that is much more difficult to overcome later. To complicate matters, if you are deceased, you are not there to tell your version of events.

How do you dissolve common law marriage in Texas?

As a result, if you are common law married (or if there is, perhaps, any possible argument that you could be), and you decide to stop living together, it may be best to actually get a divorce. This is especially true if you either: (a) plan to get remarried — you don’t ever want to be accused of “Bigamy,” under Texas Penal Code, Section 25.01, or (b) you have significant property, inheritance, life insurance, etc., and don’t want to be a target for a vengeful former spouse.

Taking the law into your own hands can be very dangerous, if you have questions about how any of this works, you should seek the advice of an experienced divorce lawyer or Texas Family Law Attorney.