Common Law Relationships and Division of Property in Texas

Jun 17, 2021 | Divorce

Once upon a time, common law marriages were common in the United States. Today, most states no longer allow common law marriage; however, the State of Texas is one of a handful of states that continue to recognize common law marriage. What happens when common law spouses end their relationship?  Dallas divorce attorney Rita M. Boyd explains the division of property when a Texas common law marriage ends in divorce.

Common Law Marriage in Texas

Although Texas law does still allow common law marriages, if your relationship ends you will need to prove that your relationship qualified as such.  Section 2.401 of the Texas Family Code governs informal or “common law” marriage, stating, in pertinent part, as follows:

(a)  In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:

(1)  a declaration of their marriage has been signed as provided by this subchapter; or

(2)  the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.

(b)  If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.

Community Property in a Texas Divorce

Texas is a community property state regarding the division of property in a divorce. Texas law defines community property as all property acquired by either spouse during the marriage, except separate property. There is a rebuttable presumption that property is community property in a Texas divorce. Separate property typically refers to property owned by a spouse prior to marriage and property inherited during a marriage; however, even those assets are not always separate assets.

When a couple divorces, all community property must be divided as part of the divorce proceedings. If you have been in a common law marriage, this applies to your divorce as well if you are able to prove that your informal marriage existed. Keep in mind, however, that marital debts will also be subject to division if you prove that you were part of an informal (common law) marriage.

Contrary to what many people think, division of community property in a divorce does not mean the assets will automatically be split 50-50. In a Texas divorce, community property must be divided in a way that is “just and right.”  In other words, the division of property must be equitable.  Factors that the court can consider in determining what is “equitable” include:

  • The disparity of earning power between the spouses.
  • The health of each spouse.
  • Fault in the breakup of the marriage.
  • Who has custody (conservatorship) of minor children.
  • Each spouse’s education.
  • Future employability of the spouses.

What Should I Do If I Want to End My Common Law Relationship?

If you have been living with someone in what you consider to be a Texas common law marriage and you are now considering divorce, you should consult with an experienced Texas divorce attorney. Whether your marital assets are subject to division when your relationship ends will depend on your ability to prove that you were in a common law marriage.  Knowing what your legal rights are regarding the assets you and your spouse have accumulated during your relationship is crucial if you plan to end the marriage.

Contact a Dallas Divorce Attorney

If you have additional questions or concerns about the division of property in a Texas common law marriage, contact an experienced Dallas divorce attorney at Rita M. Boyd, P.C. to discuss your legal rights and options by calling 972-380-8000 to schedule your appointment today.