One of our questions this month came from a member in Alvin, Texas. She writes:
My son and girlfriend are not married, but have been together for about six years and have a 3 year-old. Do they have to get a divorce if they are no longer together?
Good question. In researching the answer, we discovered that there’s no simple yes or no. The law on topic of informal or common-law marriage is quite complex!
Texas Legal is not a law firm, and we do not offer legal advice. We always recommend that someone consults with an attorney for legal advice. But we reached out to one of our network attorneys, Adam Kielich of the Kielich Law Firm in Bedford, for an answer. Adam has a detailed explanation of the topic of divorce and common-law marriage on his blog.
In general, divorcing after an informal marriage depends on:
1. Whether the parties declared their informal marriage by completing a Declaration of Informal Marriage form.
2. Whether the relationship meets the standard for informal marriage, as defined by Texas Law. The law requires that the parties agree to be married, they live together as spouses and refer to each other as spouses publicly.
3. Whether one side disputes the existence of an informal marriage.
4. Whether either spouse wants the court to divide assets, assign custody or property rights as part of their split.
Why would a couple that was not formally married want to get a legal divorce? Well, in many cases, they might not, says Kielich.
“In many cases the parties to a common law marriage who split up never obtain a divorce, they simply go their separate ways and act like the marriage never really existed,” says Kielich. “As a practical matter, this can work just fine for the spouses much like other married individuals who are separated from their spouses but never obtain a divorce. If no declaration was filed proving the common law marriage, then it is even easier to go on as though the marriage does not exist (or never existed) because there is no documentation in the state’s marriage records.”
But some situations require court intervention, which can mean its useful to establish an informal marriage and use the legal system to divorce, especially when it comes to kids and assets.
“You can deal with child issues in a suit affecting the parent-child relationship outside of a divorce, but it is common to deal with the child and property issues collectively in a divorce,” says Kielich. “You may want to protect the assets you have now or into the future from your common law spouse. This is particularly useful if you see yourself moving into a higher income bracket where your earnings continue to be community property. Alternatively, your common law spouse may be financially better off after you separated and you want to use a divorce to exercise your community property rights under the Texas Family Code.”
For a more complete discussion on the topic of informal marriage under Texas Law, be sure to read Kielich’s, “Do I Need a Divorce for my Common Law Marriage?”
Texas Legal members have access to free legal advice anytime through our Legal Access phone line and have several free attorney consultations as part of their membership. A Texas Legal membership also provides extensive coverage for family law issues, including divorce, custody and child support. Consider becoming a member of one of our group or independent plans so you always have legal help when you need it.