What Does a Divorce Look Like for a Common-Law Marriage?

 Posted on August 09, 2024 in Divorce

As of 2024, only eight states, including Texas, allow common-law marriage, which may also be known as informal marriage. In states that recognize this type of marriage, it is considered a valid and legal way for a couple to marry, although the laws that apply to common-law marriage are different between the states that do allow it. An informal or common-law marriage requires these three elements: agreeing to be married, living together as husband and wife, and representing to others that you are married, i.e., "This is my husband, Bob."  

It is worth noting that despite the Supreme Court decision in Obergefell v. Hodges, the Texas Legislature has not amended the statutory "husband and wife" language. But what happens when a couple in this type of marriage wants to go their separate ways? Is a divorce necessary? If so, is it handled in the same way as a "regular" divorce? If you find yourself in this situation, it is essential that you speak to a knowledgeable Fort Worth, TX divorce attorney from The Law Office of J. Kevin Clark P.C. to ensure your rights are properly protected.

Two Common Myths Associated with Common-Law Marriage

The two most common things you may hear others say about common-law marriage are:

• You must live together for seven years (or five years, or 10 years).
• If you are in this type of marriage, there is no need for a divorce.

Neither of these statements are true. There is no magic number of years that a couple must live together for a common-law marriage to be valid. Under Texas Family Code Section 2.401(a)(2), the three conditions listed above must exist simultaneously to establish the marriage. The parties must also be at least 18, unrelated, and not currently married to someone else.

The second myth is that there is no need for divorce. Common-law marriage is not a loophole to avoid divorce. Once established, it is treated the same way as a ceremonial marriage. Under the community property laws of Texas, a common-law marriage must be terminated through divorce.  

What Will My Divorce from a Common-Law Marriage Look Like?

Once a common-law marriage in Texas is established, the spouses hold all the same legal rights as a couple who are in a ceremonial marriage. These rights are important in situations where the couple shares property, assets, and children. If a spouse from a ceremonial marriage is entitled to spousal support, that person would also be entitled to spousal support if they were in a common-law marriage.

Technically speaking, a common-law marriage could end without divorce if neither party is interested in pursuing a divorce. Yet, if there are shared assets and children, it becomes problematic.  Walking away from a common-law marriage as though it never existed could potentially cause serious legal issues down the line.  

The actual divorce process is the same for a ceremonial marriage as for a common-law marriage. One spouse must file a petition for divorce, and the couple will attempt to resolve all issues for the judge to sign off on. If there is no agreement, the judge will make those decisions on behalf of the couple.

What if My Partner Denies We Had a Common-Law Marriage?

A spouse with more financial assets could deny the existence of a common-law marriage to avoid having to share those assets. If this happens to you, you would be required to prove to the court that your relationship clearly met all the requirements for a common-law marriage. This might be done by providing proof of joint bank accounts, a joint mortgage, utility bills, statements from friends and family who believed you to be married, use of the same last name, and tax filings.   

Contact a Fort Worth, TX Divorce Attorney  

While you are not required to hire an attorney for a divorce—either common-law or ceremonial—it is strongly advised. Divorces are complicated, and a common-law divorce has the potential to be complicated times ten. Hiring an experienced Fort Worth, TX divorce lawyer from The Law Office of J. Kevin Clark P.C. can make all the difference in the process and the ultimate outcome. We are happy to answer your questions and help you start the next chapter of your life. Contact The Law Office of J. Kevin Clark P.C. at 817-348-6723 to schedule an appointment.