Texas Common Law Marriage and Divorce: Your Questions Answered

In the realm of family law, navigating the complexities of relationships and legalities can be a daunting task. Common family law questions often revolve around the intricate and varied aspects of marriage, divorce, and the rights and responsibilities entailed therein.

To demystify these complexities, particularly in the context of Texas law, this article delves into a comprehensive Q&A format, addressing some of the most pressing and common family law questions. From the nuances of common law marriage and divorce to the specifics of cohabitation, separation, and marital rights, this guide aims to provide clarity and understanding, helping individuals make informed decisions in their familial and legal journeys.

Q1: What is an Informal or Common Law Marriage in Texas?

A1: In Texas, an informal or common law marriage is legally equivalent to a ceremonial marriage. It’s defined under Texas Family Code Section 2.401 and can be established through a declaration of marriage or by meeting conditions like mutual agreement to be married, living together in Texas as husband and wife, and publicly acknowledging the marriage.

Q2: Does Living Together Constitute a Common Law Marriage?

A2: No, merely living together does not create a common law marriage in Texas. Three elements must be present: an agreement to be married, cohabitation in Texas as husband and wife, and public acknowledgment of the marriage as such.

Q3: How Can I Prove an Informal Marriage in Texas?

A3: To prove an informal marriage, you need to demonstrate an agreement to be married, cohabitation in Texas as a married couple, and public acknowledgment of your marital status. This can be through actions, behaviors, or verbal affirmations.

Q4: Is There a Minimum Cohabitation Period to Establish a Common Law Marriage?

A4: No, Texas law does not specify a minimum cohabitation period to establish a common law marriage. Essentially, there is no legally defined duration that couples must live together to be considered married under common law. However, the key lies in the quality of the relationship during the cohabitation period. The couple must live together in a manner that reflects a genuine marital relationship.

This means sharing responsibilities, integrating lives, and generally conducting themselves in a way that mirrors the essence of marriage. Therefore, while the duration of cohabitation is flexible, the focus is on the nature of the relationship and how the couple presents themselves to the world during their time living together. Transitioning from mere cohabitation to a recognized common law marriage hinges on these qualitative aspects, making each case unique and dependent on its specific circumstances.

Q5: Do I Need a Divorce for an Informal Marriage?

A5: Yes, if you are in a common law marriage, you must go through the formal divorce process to legally end the relationship. Transitioning from a common law marriage to its dissolution necessitates a formal divorce, similar to ceremonially married couples. In Texas, even though your marriage began informally, without a traditional ceremony or license, it still holds the same legal weight as a ceremonial marriage.

The process mirrors that of ending a ceremonial marriage, ensuring that all legal and financial aspects, such as property division, child custody, and alimony, are appropriately addressed. Thus, while entering an informal marriage might seem less complicated, exiting it requires the same legal formalities as any other marriage.

Q6: Is There a Concept of Common Law Divorce in Texas?

A6: No, there’s no such thing as a common law divorce. Regardless of how the marriage was formed, the legal process for divorce remains the same.

Q7: What’s the Time Frame for Proving a Common Law Marriage After Separation?

A7: There’s no specific timeframe to prove a common law marriage after separation, but acting sooner is generally better. A presumption against marriage is created after a two-year separation but can be challenged with evidence.

Q8: Can Someone Under 18 Enter a Common Law Marriage?

A8: No, individuals under 18 years old cannot be part of an informal or common law marriage in Texas.

Q9: Are Same-Sex Couples Eligible for Common Law Marriage in Texas?

A9: Following the landmark 2015 Supreme Court ruling in Obergefell v. Hodges, same-sex couples in Texas gained the right to enter into common law marriages. This significant legal shift aligns with the nationwide recognition of same-sex marriage. 

This means same-sex couples must meet standard criteria: they agree to be married, live together in Texas as a married couple, and present themselves publicly as spouses. The ruling not only enabled same-sex marriages but also expanded common law marriage to include these unions. It affirms the legal validity and recognition of same-sex relationships in Texas. 

Q10: Can I Enter an Informal Marriage If I’m Already Married?

A10: You cannot enter an informal or common law marriage in Texas while already married to someone else. This law reflects a commitment to the integrity and exclusivity of marital relationships, be they formal or informal. If you are currently married, you need to legally end your existing marriage through divorce  before you can consider a new marriage.

This requirement upholds the seriousness of marital commitments and prevents the legal complexities of concurrent marriages. Thus, transitioning to a new common law marriage mandates the lawful and complete conclusion of any prior marital unions.

Q11: What Is the Importance of the Declaration of Informal Marriage?

A11: Filing a Declaration of Informal Marriage with the county clerk serves as prima facie evidence of the marriage’s existence. It’s a formal recognition of the relationship.

Q12: Why Is Proving a Common Law Marriage Important?

A12: Proving a common law marriage is vital for issues like property division in divorce and inheritance rights. It ensures that spouses receive their equitable share of assets and inheritance, similar to a ceremonial marriage.

Final Thoughts

Exploring common family law questions unveils a blend of legal subtleties and personal situations. Specifically, Texas law provides key insights into common law marriage, divorce, and their various aspects. We aim to empower individuals by addressing common family law questions with clear, detailed answers. This enables more confident navigation through complex family law issues. 


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Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding Divorce, it’s important to speak with one of our Houston, TX Child Divorce Lawyers right away to protect your rights.

Our Divorce lawyers in Spring TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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