How to File for Common Law Divorce in Texas

By Kimberly Best
a common-law marriage, Texas, a formal divorce

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Common-law marriage makes a couple who live together and hold themselves out as married, married in the eyes of the law even if the couple never had a wedding or obtained a marriage license. Texas is one of the few remaining states that recognize common-law marriage. In Texas, a divorce can be required to end a common-law marriage.

Determine whether you are in a common-law marriage. In Texas, there are two ways to enter into a common-law marriage: Filing a certificate with the court clerk stating that you are married under common law; or living together and holding yourselves out to the public as married. In the latter case, both parties must be 18 years of age, share an exclusive residence, hold themselves out as married and consider themselves married.

Decide whether divorce is necessary. If you filed a certificate with the court, then divorce is required. If you entered into a common-law marriage incidentally (by living with someone and calling each other spouses), then divorce is not necessarily required under Texas law. However, if you have children or substantial property or assets with your common-law spouse, it is recommended that you file for divorce unless you can agree on the division and all obligations amicably.

Hire an attorney if you do not wish to represent yourself. An attorney will be able to complete the appropriate forms, and negotiate a divorce settlement or custody agreement on your behalf. If necessary, a divorce attorney will go before the court and argue your side.

Complete an Original Petition for Divorce and an Affidavit of Consent for your partner to sign stating he does not contest the divorce. Both forms are available online and directly from your local district court. There are several forms to choose from, depending on whether you have children and other factors. Fill in the questions on financial and custodial considerations. File the forms with your local district court and serve them on your partner. Attend court hearings to determine the appropriate division of your assets, and rights and obligations regarding children.

Enter into a divorce agreement with your partner if you both do not wish to have the court decide the division of assets and the rights and obligations regarding children. If the agreement is not outlandish, the court will enter it as an order, making it enforceable in the future. This agreement may provide for alimony payments, child visitation, division of property and child support payments.

About the Author

Kimberly Best has been writing on law, art, and travel for 16 years. She has worked with a variety of professional platforms including the Art Newspaper and the New York Public Radio.

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