Am I Even Married? (Common Law Marriage)

Posted on April 18, 2011 by Michelle O'Neil

     An Excerpt from the book, "Basis of Texas Divorce Law" co-authored by Michelle May O'Neil and Ashley Bowline Russell

Posted by Michelle May O'Neil on April 18, 2011

     A common law marriage is when a man and woman agree to be married and live together in Texas as husband and wife while representing to others that they are married.  Contrary to popular belief, there are no time requirements for establishing a common law marriage.  Provided there's an agreement to be married that the couple tells other people about, a couple could live together for one day, to establish a common law marriage.

     There are two ways to dissolve a common law marriage. The first is through traditional legal divorce procedures.  The second option is to separate and wait.  According to Texas Family Code, if no lawsuit to determine marital status is filed within two years after the separation of common law spouses, the law presumes there was no agreement to be married.

     Practically speaking, if there are children resulting from a common law marriage, it is better to pursue a traditional divorce.  This is also true if the two spouses obtained substantial amounts of property during the term of the marriage, as a divorce is an easier way to divide the property than through a traditional suit for partition between non-spouses. 

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We were separated in New York, but reconciled and have been living together since '96 in Dallas. Am I still married?

Posted on January 6, 2010 by Nathan Anderson

I recently had a question from a potential client regarding common law marriage.  Turns out that this individual had separated from her husband in 1995 in New York (not divorced, but separated), the couple reconciled, moved to Texas in 1996 and have been living together since then.  Thirteen years later, she decides to move on and wants to know if she has to go through the formalities of a divorce here in Dallas.

First, Texas does not have "legal separation" like other states do.  The impact of this is that since this individual was never divorced in their home state, then legally she is still married.  Even if she were divorced, and then reconciled in Texas, there is another problem that risen -- informal (common law) marriage.

An informal or common law marriage is a marriage between a man and woman who agree to be married, live together as husband and wife, and hold themselves out to others as husband and wife, but who have not obtained a marriage license and participated in a marriage ceremony.  All three of these elements must exist at the same time for there to be a valid informal marriage.  if a valid informal marriage exists, a formal divorce proceeding is required to dissolve the marriage. Texas does NOT recognize informal divorces. 

Bottom line: this individual is likely still married and a divorce proceeding in Dallas County is required to end the marriage.  Even if the marriage ended in New York, there is the possibility a common law marriage exists which will also necessitate the need for divorce. 

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