When it comes to marriage, many of us automatically choose the traditional process of getting down on one knee to pop the question, applying for a marriage license, picking a venue, participating in an actual ceremony, and enjoying the countless blessings that fall in between. But for every handful of couples who choose this ceremonial marriage path, almost as many desire a less formal process known as common-law marriage. They are still in love and consider themselves married — they simply choose not to obtain a marriage license and stand in front of a priest or judge to “make it official.”
Both types of marriages are recognized as valid in Texas. But a common question many common-law married couples have is that while they know they can enjoy many of the same benefits as legally married couples do, what happens if they want to get a divorce?
Is divorce even possible in a common-law marriage? Let us discuss this in today’s blog post.
First Things First: Why Would a Couple Choose Common-Law Marriage?
Plenty of couples in long-term relationships ultimately choose the common-law marriage route. A few reasons why couples might choose this path can include any of the following:
- They want to avoid going through the formalities of a wedding ceremony.
- They want to save money.
- Texas recognizes common-law marriage, so why not?
That last point is true but certainly not a given. While you can enjoy many of the same benefits as legally married couples, being recognized as a common-law couple in Texas requires that the party claiming the parties are married prove it in the divorce action filed in Court. To do this, one could complete and sign a Declaration of Informal Marriage with the county clerk. While this is not a requirement, having this document on file where you live is an alternative way to have at least a sworn statement that the marriage exists and will eliminate having to prove you are married in the divorce.
In addition, both parties must have the present intent to be married, live together as husband and wife, and hold themselves out (tell others) that they are married. There is no rule for how long the couple must have the present intent to be married, live together, or hold themselves out as married, but all three requirements must exist simultaneously.
Knowing This, Is Divorce Possible in a Common-Law Marriage?
Yes. The divorce process does not change regardless of whether you were married through traditional means or have entered into a valid common-law marriage. However, if you and your spouse do not have a signed Declaration of Informal Marriage on file or cannot prove a marriage exists, things can get extremely complicated in the event your relationship is over — whether through death or divorce — as the Family Code does not apply and would require you to file a lawsuit and request the court partition your property. In some cases, you may be left with no recourse.
If no declaration was filed and there is a dispute about whether a common law marriage existed, you must go to court to prove the marriage. Texas law places a two-year statute of limitations on these types of proceedings, which means you must ask the court to declare your marriage was valid within the two years after you separate from your alleged spouse, change your mind about being married, or when you stopped holding yourselves out as married — whichever occurs first.
Some of the potential ramifications of not being able to prove your common-law marriage in divorce include:
- Issues involving property ownership and division.
- No spousal maintenance
- Loss of right of survivorship
- Inability to receive property under the estates code if there is no Will.
Whether or not you’re married does not impact your ability to have the court resolve any issues you may have that are related to kids. The Texas Family Code allows a parent to file a Suit Affecting the Parent-Child Relationship or to establish paternity regardless of marital status.
Call Nelson Law Group Today!!
If divorce is the answer, you need an advisor to guide you through each stage and help you deal with the fears that naturally come with that. We work diligently to achieve a result that ensures you receive what you are entitled to as you move forward onto the next stage of your life. The Nelson Law Group brings nearly two decades of family law experience to every case.
Give our knowledgeable staff at Nelson Law Group, PC, a call if you have any further questions. Our staff is always available. Give us a call today! For more information about Brett A. Nelson, click here.
