How to File for Common Law Divorce in Texas
By Claire Gillespie
Updated July 23, 2018
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Only a few states recognize common law marriage, including Texas. A common law marriage in Texas is that in which two people are considered to be married without having a marriage ceremony or marriage license. A common law marriage has the same legal effect as a ceremonial marriage, so a common law divorce follows the same legal process as all divorces, with an additional requirement of proving the common law marriage.
Common Law Marriage in Texas
To have a common law marriage in Texas, you must both be over the age of 18, agree to be married, live together as spouses (cohabitation) and tell other people (not only family and close friends) that you are married. It doesn't matter how long you have been living together or whether you have children together. The Texas Family Code defines a common law marriage as an "informal marriage."
Read More: What Is Common Law Marriage?
Common Law Divorce in Texas
Getting a divorce when you have a common law marriage is the same as with a ceremonial marriage, except you must first prove to the court that you were married. The person that first files divorce papers with the court is responsible for proving that there was a common law marriage.
As a practical matter, you don't have to get a common law divorce as you could simply part ways and act as if the common law marriage never existed, but if you have property or children together, you may want to rely on legal provisions at a later stage. A common law marriage divorce allows the court to divide marital property, assign rights and obligations on any children of the marriage and terminate communal property rights in future property acquired by either of the spouses.
The grounds for a common law divorce in Texas are insupportability (i.e., the marriage cannot continue due to disagreements or differences that cannot be resolved), mental or physical cruelty, adultery, a felony conviction resulting in one spouse being imprisoned for at least one year without pardon, abandonment for at least one year, living apart without cohabitation for at least three years, and confinement in a mental hospital for at least three years for a mental condition that will not improve.
Common Law Marriage Divorce Procedure
The easiest way to prove a common law marriage is to complete a Declaration of Informal Marriage form, available from your county clerk’s office. File the completed form with the county clerk. Once this is filed, it is very difficult for a spouse to later dispute the existence of a common law marriage. If the parties do not agree that they have a common law marriage, the party who wants to file for divorce has to prove that the marriage existed. Normally, this is done by trial in divorce proceedings.
Otherwise, the divorce process is the same. Complete a petition for divorce (providing the date you started living together as spouses where the form asks for the date of marriage). File the completed petition at the district court in the county where you or your spouse have lived for three months, and request a citation, a document telling your spouse you have filed for divorce. Serve your spouse with the citation and a copy of the filed petition using a private process server or county sheriff.
To file for common law divorce in Texas, you first have to prove to the court that you were married with a Declaration of Informal Marriage form. Thereafter, the process is the same as for all divorces, beginning with filing a petition for divorce at the district court in the county where you or your spouse have lived for three months.
- Most divorce attorneys offer free consultations. Since the facts of each case can vary, it is important you at least see an attorney for a consultation on whether divorce is necessary and, if so, whether an attorney is required.
- There is a misconception that living together alone can result in a common-law marriage. Rather, you must cohabitate, hold out to the public that you are married and intend to create a common-law marriage.
- This article is an overview of the common-law divorce process in Texas. It is not meant as a substitute for legal advice.
Claire is a qualified lawyer and specialized in family law before becoming a full-time writer. She has written for many digital publications, including The Washington Post, Forbes, Vice and HealthCentral.