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Common Law Divorce Texas

Posted on November 9th, 2012 by The Red Headed Lawyer

Last week we discussed about the parameters of being in a common law marriage in Texas (or informal marriage). According to the Texas Family Code, there are four main points to consider, to see if you’re in a common law marriage. In summary, they are:

  1. You have agreed to be married.
  2. You have lived together for any length of time. (The length of time being inconsequential.)
  3. You have represented to others, through formal and informal means, especially through writing, that you are married.
  4. The relationship has not ended or ended less than two years ago.

(see our detailed post on common law marriage in Texas for more details)

The second part to this is, what happens if you’re found to be in a common law marriage, and want to end the relationship? Do you now need a common law divorce? In the state of Texas, there is no such thing. If you and your partner decide to end the relationship, then you and your partner could simply go your separate ways, and leave it at that. This is in fact what most people do. Two years after the relationship ends, then both of you are, for the most part, not at risk for any claim related to marriage.

If you and your partner have had children together, purchased real estate together, or if sums in pensions or 401ks have accumulated, then you may need to get these matters sorted out legally. Either of you could file for divorce to do this. By filing for a divorce, you can make sure your children have correct legal protection, as well as proper child support and visitation rights. By filing for a divorce in a common law marriage, you also make sure the real estate is divided properly and dealt with in a legally binding manner. It is not absolutely necessary, however, to get a divorce to take care of most of these things. Children’s issues can be handled legally through a Suit Affecting Parent-Child Relationship. Real estate can be handled either by agreement and having the proper documents drafted or if no agreement, then through a civil suit.

In summary, if you’ve lived together with someone for any length of time, have had children together, have purchased real estate property together, and/or have accumulated funds in 401ks or a pension, and you and your partner have decided to end the relationship, then it would be best to seek the advice of a professional divorce attorney. A reputable family law attorney will advise you on the best legal action to take, whether it is divorce, some other action, or occasionally, simply walking away.