How to get a Common Law Divorce in Texas

A few times a year I get a question or two regarding how to get a common law divorce.

BRIEF ANSWER

There is no such thing as a common law divorce. If there is a valid marriage in order to be divorce you must go through the same divorce process as everyone else.

Common Law or Informal Marriage and Divorce

One way a divorce involving a common law marriage can be different is that one of the spouses may dispute that there was ever a valid marriage. If this dispute arises then a mini trial must commence to get a finding of if a valid marriage exists before the normal divorce process can resume.

Two-Year Presumption

Probably where some of the confusion regarding the existence of a "common law divorce" is that if a proceeding to prove informal marriage under family code is not commenced within two years after the parties have separated and stopped living together, there is a rebuttable presumption that the couple did not enter into an agreement to be married. This just means the person wanting prove a common law or informal marriage exists will have to put on evidence to rebut the presumption.

To prove the existence of an informal marriage, a party can present evidence of the elements of an informal marriage or by proof of either an executed declaration of informal marriage or a recorded certificate of informal marriage

THERE IS NO INFORMAL DIVORCE

An informal marriage begins when all statutory elements are concurrently satisfied in Texas and the parties have the capacity to marry. Like ceremonial marriage, an informal marriage lasts until dissolved by death, divorce, or annulment.

ELEMENTS OF A TEXAS INFORMAL MARRIAGE

To meet the statutory requirements for an informal marriage, the parties must:

1. Agree to be married
2. Live together in Texas as husband and wife, and
3. Represent to others in Texas that they are husband and with

Ebook

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