Common Law Marriage Divorce

Texas Law -- Divorce in Common Law Marriages

What is a Common Law Marriage under Texas Law?

Living together is not enough to establish a common law marriage in Texas. There has to be an agreement and a disclosure to the public that the couple is married. In order to have a valid common law marriage, a couple must meet the following criteria under state law:

• Be at least 18 years old, because a person under 18 years of age cannot be common law married under Texas law;
• Both parties have signed and filed a document called a “declaration of marriage” (using the form found in Texas Family Code Sec. 2.402 and filed with the county clerk in accordance with Texas Family Code Sec. 2.404); or
• The man and woman agreed to be married and
  • after the agreement they lived together in this state as husband and wife and
  • they represented to others that they were married (normally this means using the same last name, referring to the other as "my husband" or "my wife").

Texas law uses the term "informal marriage," rather than common law marriage, for these unions. There is also a legal presumption that there was no marriage if no suit for proof of marriage is filed within two years of the date the parties separated and ceased living together.

Is Common Law Marriage Different From Traditional Marriage Under the Law?

No.  When a common law marriage exists, the spouses obtain the same legal treatment given to officially married couples, including the requirement that they go through a legal divorce to end the marriage.  Texas officially recognizes the union and the couple receives the same legal treatment as formally married couples.  And if Texas law recognizes the common law marriage as valid, federal law will respect that union as a valid marriage, as well. 

Will the Same Child Support and Child Custody Laws Apply in a Divorce after a Common Law Marriage or Informal Marriage?

Yes.  The same statutory guidelines that apply to protect children of divorce apply to common law marriages and formal marriages.

If you have a common law marriage and are contemplating a divorce in Texas, contact us to receive divorce advice and learn your rights. Please feel free to schedule a paid initial consultation at your convenience. We’re here to help.