Ending a Common Law Marriage in Texas: Divorce, Property, Support

What happens when a common law couple breaks up?

If the couple was informally married, they need a divorce. Texas has no separate "common law divorce." The marriage ends the same way as a ceremonial marriage, through a divorce case that ends in a signed decree dividing property and, where there are children, setting custody and support.

If the couple was never married, there is nothing to dissolve. Each partner keeps what they own, and jointly owned property is divided under co-ownership law. Children's issues are decided in a separate custody case either way.

The first question is often whether a marriage existed at all. When one partner files for divorce and the other denies the marriage, the court decides that issue first. See divorce in Dallas for how the rest of the case proceeds.

Is there a time limit for claiming common law marriage after separation?

There is no hard deadline, but waiting longer than two years makes the claim much harder. Under Texas Family Code § 2.401(b), if a case to prove an informal marriage is not started before the second anniversary of the date the couple separated and stopped living together, the law presumes that the couple never agreed to be married.

The presumption is rebuttable, which means the person claiming the marriage can still win with enough evidence. In practice, it shifts the weight of the case. Anyone who believes they were informally married and has separated should talk to a family lawyer before the two years pass.

Can I get half of our property if we never legally married?

Only if you prove an informal marriage. If you do, property acquired during the marriage is presumed to be community property, and the court divides it in a way it finds just and right. That is not always an equal split, and separate property, such as what each spouse owned before the marriage or received by gift or inheritance, is not divided.

If no marriage is proven, there is no community estate. Property generally belongs to the partner whose name is on the title or who paid for it, unless there is a written agreement, joint ownership or another legal basis for a claim. That is why the marriage question is usually the biggest issue in these cases.

Debts follow similar rules. In a proven informal marriage, debts taken on during the marriage are part of the division. Between partners who were never married, each person is generally responsible for the debts in their own name and for any loan they signed together.

Can my partner claim part of my business after we split?

Only if a marriage is proven or your partner has a separate legal claim to the business. If the court finds an informal marriage, a business started during the marriage may be community property, and a business started before it may still raise claims for growth funded by community effort or money. Those questions turn on dates, records and valuation.

If there was no marriage, a former partner would need something else, such as an ownership interest, a partnership agreement or a loan, to claim a share. John works with valuation experts and forensic accountants on these cases. See business valuation and protection.

Can a common law spouse request spousal maintenance?

Yes, if the marriage is proven and the spouse qualifies under Chapter 8 of the Texas Family Code. An informal marriage is a marriage for every purpose, so the same eligibility rules apply. Those rules look at the length of the marriage, the requesting spouse's property and ability to earn, and certain other circumstances.

The start date of an informal marriage matters here too, because the length of the marriage is part of the eligibility test. See spousal maintenance in Texas for how the court decides.

Can we end a common law marriage without going to court?

No. A proven informal marriage ends only with a court decree, so a divorce case has to be filed. The process can still be calm. If both spouses agree on the terms, the case can be handled as an uncontested divorce, and many couples settle the terms in mediation so that the court only signs the agreed decree.

Partners who agree that they were never married do not need a divorce. They can sign a written statement saying so, which helps avoid a later dispute.

How do I prove a common law marriage after my partner dies?

With the same three elements, usually in the court handling the estate. A surviving partner who claims to be a spouse must show that the couple agreed to be married, lived together in Texas as spouses and represented to others that they were married, or that they signed a declaration of informal marriage.

The question usually comes up when the court determines who the heirs are, or when benefits, insurance or the right to make decisions are at stake. Documents become even more important because the other partner cannot testify. Gather tax returns, forms naming a spouse and the names of people who knew you as a married couple, and talk to a lawyer promptly. See wills and estate planning for how couples can avoid this problem.