Do you need a divorce from a common law marriage?

In Texas, a common law marriage (also known as an informal marriage) is a situation where a man and a woman have agreed to be married, have lived together as husband and wife , and have held themselves out to others as being married without obtaining a marriage license or participating in a formal marriage ceremony.

If there is any possibility that you have been in a common law marriage, it is best to obtain a formal divorce when that relationship ends.  If you filed tax returns together as a married couple, you will need a divorce in order to file as single going forward.  If you had children together, you will need some type of court order to address custody and child support issues.  If there is any doubt about whether or not a common law marriage existed, it is a good idea to include those child custody issues in a divorce.

Why is a divorce a good idea if this type of relationship ends?  Here is a good example:  Joe and Sally have lived together for several years and had children together.  They break up.  Joe and Sally have no property, so they do not bother with a divorce.  Later, Sally obtains a great job, accumulates a 401(k) and buys a house.  If the parties never divorced, Joe could file for divorce years down the road and claim a community property interest in all of Sally’s accumulated wealth.   Additionally, it could pose problems if Sally or Joe decided to enter a formal marriage with someone else.





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