How to File for Common Law Divorce in Texas
By Beverly Bird
Texas is one of only a few states that recognize common law marriage, a union entered into without a ceremony or license. However, if you have children, property or debt together, those issues are no less real because you didn’t take out a marriage license. Therefore, Texas gives you the option of getting a “regular” divorce to address these issues. The process is the same as if you were formally married.
Ascertain if you really do have a common law marriage, called an “informal marriage” in Texas. Section 2.401 of the Texas State Code lists the legal criteria. You and your spouse must have agreed to marry, lived together as husband and wife, and told others you were married. In the alternative, you might have registered your union as an informal marriage with your county clerk.
Download a petition for divorce from the Internet. Many Texas counties have websites that include free legal forms, including petitions. Legal websites also offer them, sometimes for a fee. Texas has two petitions, one for use if you have children and the other for use if you do not.
Complete the appropriate petition, telling the court about your children, property and debts. In paragraph 3, where the form asks for the date of your marriage, enter the date when you began living together as husband and wife and note that yours is an informal marriage.
Take your completed petition to the district court in the county where you have lived for three months, or where your spouse has lived for three months. File it with the court clerk and ask for a citation. This is a one-page document that tells your spouse you’ve filed for divorce and how long he has by law to respond to your petition. If the clerk in your county does not have a citation form available, you can usually access one on the Internet through the same website where you got your petition.
Serve your spouse with the citation and a copy of your filed petition. You can hire a private process server to deliver it to him, or you can use the sheriff or constable in your county. If you use a private process server, he will return an affidavit of service to you, which you'll also have to file with the court.
If you don’t have children, property or debts, you don’t have to do anything to end your common law marriage in Texas. Under legislation passed in 1995, if you remain apart for two years without taking any legal action to end the marriage, the law considers that your marriage never existed. If you do have children, property or debts, you should file for divorce within two years so the court can formally address those issues. The exception is if you registered your marriage with the county. In this case, you must file for divorce to officially end your marriage.
If you have children, but no property or debts, you don’t necessarily have to go through the divorce process to ask the court to issue orders regarding custody, parenting time and child support. You can file what Texas calls a “Suit Affecting the Parent-Child Relationship,” or SAPCR, which will only resolve these issues.
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.