Texas is one of the states that still recognizes informal marriage, better known as common-law marriage. If you were informally married, the relationship is a real marriage — which means ending it takes a divorce, with the same property division rules that apply to any other Texas divorce.
The Three Elements
Under Texas Family Code § 2.401, an informal marriage can be established either by filing a signed Declaration of Informal Marriage with the county clerk, or by proving all three of the following:
- the couple agreed to be married;
- after that agreement they lived together in Texas as spouses; and
- they represented to others that they were married.
All three must be present at the same time. There is no minimum number of years — living together for a decade proves nothing by itself, and living together for a month can be enough if the elements are met.
The Two-Year Presumption
Timing is critical. If a proceeding to prove an informal marriage is not commenced before the second anniversary of the date the parties separated and stopped living together, the law presumes there was no agreement to be married. That presumption can be rebutted, but it is a real obstacle, and it is the reason these cases should not sit.
Proving It
Evidence typically includes joint tax returns filed as married, insurance and employment records naming a spouse, joint leases, mortgages and bank accounts, wedding-style ceremonies or rings, and testimony from family, coworkers, and friends about how the couple introduced each other. Denials in other contexts — filing taxes as single, for example — cut the other way.
Why It Matters Financially
If an informal marriage existed, everything earned and acquired from the date the marriage began is presumptively community property subject to a just and right division, and spousal maintenance may come into play. If it did not exist, the parties are simply two people who owned things together, and the case becomes a property dispute rather than a divorce. That single question can be worth more than everything else in the case.
Ending an Informal Marriage
There is no such thing as a common-law divorce. Once an informal marriage exists, it ends only by death, annulment, or a divorce decree. You can also file a Declaration of Informal Marriage during the relationship to remove any doubt.
Frequently Asked Questions
How many years do you have to live together for common-law marriage in Texas?
There is no time requirement. Texas looks for an agreement to be married, living together in Texas as spouses, and representing to others that you are married.
Is there a deadline to prove a common-law marriage?
Effectively yes. If no proceeding is filed within two years after separation, the law presumes the parties never agreed to be married.
Do I need a divorce to end a common-law marriage?
Yes. An informal marriage is a marriage, and it can only be ended by death, annulment, or a divorce decree.
Texas Statutes Referenced
- § 2.401 — Proof of Informal Marriage
- § 2.402 — Declaration and Registration of Informal Marriage
- Chapter 2 — The Marriage Relationship
- § 7.001 — General Rule of Property Division
Related Pages
- Texas Divorce (main page)
- Community vs. Separate Property
- Just and Right Division
- Void Marriages and Bigamy
Talk With a Texas Divorce Attorney
If a common-law marriage is in dispute, the clock may already be running. Call 713-955-6182 or contact The De Leon Law Firm.