Do I still need divorce papers if we were never legally married? 1 Answers as of June 20, 2011

I have been with my partner for 7 years, we have a son together, but now he is contemplating not being with me. He said if he does decide to leave, then we'll have to go through an actual divorce. Is this true? We don't own any assets together, even our bank accounts are separate. The only thing under both our names is the apartment lease and our son and maybe a credit card. We've never even signed common law marriage papers either.

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Reeves Law Firm, P.C.
Reeves Law Firm, P.C. | Roy L. Reeves
While there is common law marriage, there is no such thing as common law divorce. So your "partner" may be correct. It depends on the facts, specifically, are you actually common law married. Common Law Marriage is more than simply living together, there are two other elements - that you held yourselves out as married to the public (do friends and family consider you married and if so, is that because of your actions? It does not count if they all have an ill-formed opinion of what is common law marriage). The third element of common law marriage is the intent to be married. As for the first element, it is clear from your questions that the two of you lived together in Texas. However, did you hold yourself out as married (signed tax returns claiming married status, did you take his last name, did you sign credit or lease documents as a married couple, do you call each other husband and wife, do you celebrate anniversaries, etc - and if you do these things, do your friends and family see these actions as the actions of two married people. If so, the only step missing is the "intent to be married". The intent must be current as in you both intend to be married now, if you are engaged to marry later, that is proof you are not common law married, because the intent to be married is an intent to be married at a later date (it is not current). Finally, regardless of the legal or philosophical status, there is a status of limitations on claiming common law marriage. It is two years from the date of separation. 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.) 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, if you are common law married, you have to get a divorce. The more important questions are 1) are you actually common law married and 2) is anything to gain by proving the marriage? On a collateral note, you will likely need at least custody and support orders. They can be secured as part of a divorce or completely separate and I handle both custody and support issues as well as divorces. Please let me know if you want to set an appointment to discuss this matter.
Answer Applies to: Texas
Replied: 6/20/2011
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