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Terminating a Common Law Marriage in Texas

 Posted on April 21, 2017 in Family Law

Texas divorce attorney, Texas family lawyerEven when a couple chooses not to officially get married, their relationship may qualify as a common law marriage. In these cases, separating couples are still required to go through the process of divorce, so if you have questions about whether your relationship qualifies as a common law marriage and what steps you need to take to obtain a divorce, it is critical to contact an experienced complex divorce attorney who can explain your rights and responsibilities.

Common Law Marriage Requirements

Before ending a long-term relationship, couples should make sure that their union does not qualify as a common law marriage, which requires that the couple has:

  • Agreed to be married;
  • Lived together in Texas as husband and wife; and
  • Represented to others that they were married.

Couples who fulfill these requirements have entered into a common law marriage and must go through the formal process of divorce. Although this designation does not change how child custody and child support are decided, it could have a significant impact on how property is divided. This is because Texas is a community property state, which means that all property owned by a couple after marriage must be divided equitably. In an effort to avoid dividing these assets, one spouse may attempt to prove that no common law marriage actually existed. In these cases, it is critical for the other spouse to provide evidence to the contrary, which could include:

  • Proof that the couple filed a Declaration of an Informal Marriage with the county clerk;
  • One party’s designation as a beneficiary on the other’s insurance policy;
  • Proof that taxes were filed jointly;
  • Evidence that both parties signed a lease; and
  • Witness testimony establishing that they were considered by the community to be a married couple.

If a party is able to demonstrate that he or she had a legal common law marriage, it will still be necessary to go through the process of a formal divorce, which requires filing petitions with the court, dividing marital property, and formulating a parenting agreement if the couple has any children.


Even when a couple satisfies all of the requirements of a common law marriage, he or she may still not be permitted to file for divorce. This is because it is a rebuttable presumption in Texas that if a party to a common law marriage failed to commence divorce proceedings until two years after their separation, the marriage was in fact never valid. Furthermore, if one of the parties is already married, any declaration of a common law marriage will be considered invalid.

Schedule a Consultation With an Experienced Complex Divorce Attorney Today

Legally terminating a common law marriage presents unique legal issues, so if you are considering separating from your partner and you believe that your relationship qualifies as a common law marriage, please schedule a consultation with a Leander complex divorce attorney at Powers Kerr & Rashidi, PLLC today.



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