|TEXAS COMMON LAW
MARRIAGE AND DIVORCE
|Contents of the Texas Divorce Course
There are only 9 of the United States which recognize the institution of common law marriage and Texas is one of them. So what is common law marriage, exactly?
The tradition of common law marriage emerged in the middle ages in England. It began because the priests and officials who were charged with performing marriage ceremonies were often unable to travel to the more rural areas of the country. As a result of that, a man and a woman might begin living together and, "hold out to the community," that they were married. And, if they considered themselves to be married, they were.
You can understand how that tradition might migrate to a country as vast as the United States. In our pioneer days, there were many, many areas with no priests, pastors, or judges, yet people still fell in love and still considered themselves to be husband and wife. If you've ever driven from Louisiana to New Mexico you can certainly understand it taking root in Texas. It's a damned big state and a pastor would have to cover a lot of territory.
Eventually, many of the states repudiated common law marriage. It was felt that it somehow cheapened the institution of marriage, or that it was irreligious. In those states now you have to married by a pastor or a legal official. Not in Texas.
So, if you were married common law in Texas do you need to get a divorce if you break up? The answer to that depends on your circumstances and the way in which you entered into the common law marriage.
In Texas, you can become common law married one of two ways. You can go down to the county court house and fill out a certificate swearing that you're married under the common law. Or, you can simply move in together and hold out to the community as being husband and wife. If you get married by swearing out the formal certificate, you HAVE to get a divorce.
If you get married by moving in together and holding out to the community, you may or may not have to get a divorce. In Texas, you have to meet four conditions for that type of an informal marriage:
(1) - You both have to be over the age of 18.
(2) - You have to live together. That doesn't mean just shacking up. That means sharing a residence where you both actually live and consider to be your home.
(3) - You have to hold out to the community as being husband and wife. That means such things as introducing one another as, "My husband," or "My wife," or signing leases together as Mr. and Mrs.
(4) - You have to consider yourselves married.
Now the first three conditions are fairly easy to prove. You can find people in the neighborhood who know that you've been living together and you can usually dig up paperwork or check books with the Mr. and Mrs. on it. The fourth condition is where some people get some wiggle room, because it's a subjective condition. How can anyone prove what you were feeling? If you say that you didn't consider yourself to be married, how can they prove that you did? And, if you didn't consider yourself to be married you weren't and you don't need a divorce.
Does that mean that you should just walk away from the situation without getting a divorce? Not always. If, for instance, you've had kids together, you want to see that they're legally protected and that child support and visitation is set up properly. If you've aquired real estate or other substantial community property, you need to have it divided by the court when you separate, so that there's clear title to the property.
On the other hand, if you've lived together for a relatively brief period of time, there are no kids, and you're splitting up your property with no problems, why bother? Why spend several hundred dollars in court fees and lawyers fees, when you can just walk away from it? In that type of a case, it really doesn't make sense to get a divorce.
Summing up, if you were married common law by swearing to a certificate at the court house, you HAVE to get a divorce.
If you were married common law without swearing out a certificate AND you have children, you probably should get a divorce.
If you were married common law without swearing out a certificate and you accumulated substantial property together, you probably should get a divorce.
If you were married common law and you have no children and no substantial property, take your pick.
About the author: Daniel Adair spent 16 years working in a family law office in Central Texas. He is the author of, "The Texas Divorce Course, A Peoples' Guide to the Texas Divorce System," and has written extensively on the Texas divorce process.