Do I have to get a divorce from a common law marriage in Texas? 2 Answers as of January 26, 2011

I lived with a man for 2 years. I put his son on my dental plan at my job and he had to sign a paper stating we were common law married. We separated on 2008 and the enrollment period was in 2009. I took his son off at that time (he did not use the insurance when we split). My question is do I have to get a divorce?

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Reeves Law Firm, P.C. | Roy L. Reeves
Wow, I love this question because it has so much to offer -

While Texas recognizes Common Law Marriage, we do not recognize Common Law Divorce. So, the short answer is that IF you are common law married and want to move on as a single person, you have to get a divorce.

Now for the twist, you may or may not be common law married for two reasons. (1) Common Law Marriage is as much a state of mind as it is a physical fact based event; and (2) there is a presumption for a 2 year statute of limitations for claim of a Common Law Marriage.

Let's take the first reason: You are NOT common law married just because you live together. You are married under common law only if you (1) live together/co-habitate; (2) the co-habitation takes place in Texas; (3) you hold yourself out as married to the public (your describe an event that could be interpreted as meeting this requirement - enrolling a person on your insurance and telling your employer and the insurance company they are your spouse); and (4) BOTH of you had the intent to be married. This last element is the trap question that will make or break you if someone is trying to prove the existence of a common law marriage. How do you prove the other person intended to be married? You file for divorce, he or she does not contest it - that is one way, but what if he or she says they never intended to be married? To be more personal, did you intend to be married? Was there an "engagement"? The Texas Court's have ruled that when the parties are "engaged" they have an expressed intent to be married at some point in the future and therefore they are NOT common law married. In other words, the intent to be married must coincide with the co-habitation in Texas and not be an expressed future intent.

I can discuss this all day and have a brief I wrote for a case years ago in my files . . . somewhere.

Okay, lets assume you have met the elements of Common Law Marriage in Texas. You state in your question that you separated in 2008. Has it been 2 years? While Texas recognizes Common Law Marriage, there is a presumption against it. In other words, if you want to be common law married, you have to prove it. (Did either of you ever file a declaration?) Assuming there is no legal declaration or court order of Common Law Marriage, there is a presumption that if two people who would otherwise (for all intents and purposes) appear as Common Law Married cease living together with and cease to act or appear as a married couple, the person wanting to claim the marriage must do so within 2 years of the separation or there is a presumption there was no marriage - you were just roommates.

You asked a great question and the qualified answer is "Maybe". More importantly, is there property you want to fight for that your former partner has in his or her possession? Is there now, or was there then a legal impediment to marriage? (I had a case once when a party claimed common law marriage, however my client was legally married to another person in another state - separated for 10 years, but never divorced - therefore my client could not legally marry the party claiming the common law marriage.) If you can not be legally married by ceremony, you cannot be legally married by common law. How long ago was the split? You said 2008 but when in 2008, has it been 24 months? Does your former partner want any benefit of the common law marriage? Do you? Your goals and your intent will determine the best course of action under the law, particularly when the area of law contains so many presumptions and twists.

If you live in Collin County or Dallas County, I would really like to meet with you and discuss your case and your goals in person or at least on the phone. Call me at 972-596-4000 and I will tell you your options and why you should consider each. For the benefit of others reading this answer, your primary options (there may be others depending on facts and goals) are to: (1) divorce; (2) seek a declaratory judgment from a court saying you were never married; or (3) ignore this and move on with your life with the presumption you were never married.
Answer Applies to: Texas
Replied: 1/26/2011
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