Texas Divorce 101: Common Law Marriage

While common law marriage does not come into play in most divorces, it still warrants inclusion in this “Texas Divorce 101” series because it is outlined in the Texas Family Code and, when proven, requires a divorce just the same as a formal marriage.

As mentioned above, common law marriage, also known as “informal marriage”, must be proven before proceeding with a divorce. If it is determined that no informal marriage exists, then you are saved the time, expense, and stress of going through a divorce. Although, it also means that the parties involved have no rights or entitlements to their partner’s property or money when the relationship ends.

Informal Marriage Requirements

In order to prove that an informal marriage exists in Texas, the parties must have evidence proving one of the following (Tex. Fam. Code §2.401):

1. a declaration of their marriage has been signed and registered; OR
2. the parties have:
   • agreed to be married, AND
   • after their agreement, they lived together as spouses in Texas, AND
   • they represented to others that they were married.

With that information in mind, let’s dive deeper into both options.

Declaration of Informal Marriage

The first way to prove an informal marriage exists includes completing, filing, and registering a “Declaration of Informal Marriage.” The declaration itself is a form prescribed by the Bureau of Vital Statistics which can be found at the office of the County Clerk in the county in which you live. Tex. Fam. Code §2.402. The declaration form requires each party to provide the following information:

• Name and a previous maiden surname, if applicable
• Address
• Date and place of birth, including city, county, and state
• Social security number

After providing the personal information above, the parties must indicate “true” or “false” to each of the following in response to the statement: “The other party is not related to me as:”

• Ancestors or descendants by blood or adoption
• Siblings, including whole or half blood or adoption
• A parent’s brother or sister, including whole or half blood or adoption
• A child of a brother or sister, including whole or half blood or adoption
• A current or former stepchild or stepparent
• A child of a parent’s sibling, including whole or half blood or adoption

Finally, the declaration form must be sworn to under oath, indicated by the parties’ signatures, and the county clerk must certify the place and date that the sworn oath was made. Once all of these steps have been completed, the clerk may prepare a certificate of informal marriage for the parties and record the time at which the certificate or declaration is issued.

The county clerk may not certify the declaration, however, if either party omits any required information on the form, either party is under the age of 18, or if either party checked “false” in response to any of the statements of relationship to the other party. Tex. Fam. Code §2.404.

Agreement of the Parties

The second way to prove an informal marriage exists is by agreement of the parties. After the parties agree that they are married, they must live together as spouses in Texas for any period of time, no matter how short, and also represent to others that they were married. Tex. Fam. Code §2.401. If both parties agree that these requirements have been met, then there should not be an issue with proceeding with a divorce. If one party disagrees that an informal marriage exists, though, then there must be some type of documented proof of each requirement to prove to the court that the parties are, in fact, in an informal marriage.

The agreement of the parties must clearly show that the parties intended to create an immediate and permanent marriage relationship, and not merely a temporary cohabitation that could be ended by either party at any time. In re C.M.V., 479 S.W.3d 352, 360 (Tex.App.—El Paso 2015, no pet.). Further, an agreement to be married cannot be inferred from the mere fact that the parties live together, and the specific circumstances of each case will determine whether or not the requirements have been met. Id.

Additional Considerations

In the event that one of the parties in the informal marriage is married to another person at the time of the agreement or declaration, then no valid informal marriage may exist. Tex. Fam. Code §2.401(d). A person can only be married to one person at a time, whether formally or informally.

If an informal marriage is proven, then the parties must proceed through a formal divorce and, in the petition, put forth proof of the informal marriage. In the divorce proceeding, the parties will determine a just and right property division for the community property acquired during the informal marriage and, if the parties have children together, establish conservatorship, possession, and access (visitation), and child support for the children through the divorce, as well.

In order to proceed with the divorce, the suit must be started within two years from the date the parties separated or stopped living together. If not commenced before the second anniversary of their separation, it is presumed that the parties never entered into an agreement to be married in the first place. Tex. Fam. Code §2.401(b).

One of our knowledgeable attorneys can help you determine whether or not an informal marriage exists in your situation, and then the next best steps for you to take. Call (214) 272-0964 or email us today to see how we can help.