Do I have to get a divorce? 1 Answers as of April 12, 2011

We were living together for pretty much 10 years. We have two children together. We have never been married officially, never signed anything at the courthouse or anything. The only thing we have done is filed taxes for the past 4 years as married. It isn't working out anymore and he moved out. Do we have to get a divorce according to the state of Texas?

Ask a Local Attorney. 100% Anonymous. Free Answers.

Free Case Evaluation by a Local Lawyer: Click here
Reeves Law Firm, P.C.
Reeves Law Firm, P.C. | Roy L. Reeves
Based strictly on what you have said, yes. However, as with all things in the law, there is analysis to be done and the answer may not be so exact. While Texas recognizes "common law marriage" there is no such thing as common law divorce.

The two of you lived together in Texas. You held yourself out as married (signed tax returns claiming married status). The only step missing is the "intent to be married". That one is a little quirky. There is evidence you intended to be married - you signed joint filing married tax returns. That may or may not be enough in and by itself, proving intent is a difficult thing. So, do you have to file for a divorce . . . maybe. The more poignant question is why would you want to establish the marriage, or do you? I would highly recommend the two of you get custody orders in place.

This will save a lot of problems in the future. If you are getting orders for custody and support of the children, tossing in divorce language is simple, particularly if the two of you have divided your assets. Which brings me back to the point of "why would you want to prove the marriage?" If there is a marriage, then money earned during the marriage is community property (including retirement accounts or other deferred compensation). Is either party seeking to get half of the other's retirement? If so, then plead common law marriage and seek the divorce with division of the property.

Okay, this last one is a little important to the analysis. While there is no common law divorce in Texas, there is a Statute of Limitations to prove the existence of a common law marriage. No one can plea to establish a common law marriage unless it occurs not later than 2 years from the date the parties cease living together. In other words, if you do not plea for the marriage to exist, after 2 years it is presumed it did not exist. (This is directly related to the "intent" element.) Think of it this way, there are three parts to a common law marriage in Texas: (1) lived together inside Texas; (2) held yourselves out to the public as a married couple (other people would be justified in thinking you are married due to comments, claims, or the manner the two of you act); and (3) the two of you both intended to be married.

Element number 1 is the easiest to meet and prove. Element number 2 is pretty easy to meet and prove - it it not what you or your former significant other intended the public to believe, it is what a reasonable person seeing the facts would believe. Filing joint tax returns, putting each other on insurance policies (medical is the most likely but it could be as simple as car insurance), assuming the other's last name (a dead give away of both elements 2 and 3) or something as simple as introducing one another to friends, co-workers, colleagues as a husband/wife/"my old man" or "my old woman" etc. Element 3 is a present intent element - in other words, if he proposed and you accepted but never followed through, that is evidence of a "future intent" a plan to marry in the future. It is not conclusive, but it is very strong evidence of future intent, not present intent.

The intent by the way, has to be mutual. Marriage is a contract, contract needs at least two parties with a common goal. Keep in mind the elements are not mutually exclusive. That is to say, evidence of element 2 (your joint tax returns) is pretty strong evidence of element 2 but it is also evidence of elements 1 and 3. Now back to the Statute of Limitations issue - the law assumes that if there was an intent to be married, someone will appear before a court within 2 years to try to establish such fact, and if not, then it is evidence (negative evidence if you will) that there was no intent to be married. Again, intent must be mutual and in this circumstance, there is a mutual showing of no intent.

So, to answer your question, you must first ask if there is anything to gain by proving the marriage, and ask yourself if he will want to prove the marriage at some point. If so, then get the divorce over now and get child custody and support orders at the same time. Otherwise, it is still beneficial to declare and divide when you get custody/support orders, it is at least cost effective - you never know when one of you may win the lottery.
Answer Applies to: Texas
Replied: 4/12/2011
Click to View More Answers: