How Does Division of Property Work in Common Law Marriage?

Texas is one of only eight states, as of 2022, that have legislation allowing the formation of common law marriages. Sometimes called “marriage without formalities” or “informal marriage,” common law marriages are therefore legal in our state. 

These marriages don’t usually come with a typical marriage certificate or other documentation from any authority. So, what happens when a common-law spouse wants a divorce and wants to claim part of the marital property? How do they prove they were married in the first place?

Proving Common Law Marriage in Texas

Our Fort Worth divorce lawyers have handled several divorces and property division matters involving common law marriage, and the first thing you’ll need to do is show that your relationship qualifies as a marriage. Section 2.401 of the Texas Family Code covers this topic, and it requires you to prove three things:

  • Both parties agreed to be married
  • After the agreement, they lived together in Texas as a married couple
  • They represented to others that they were married

Importantly, there is no magic number of years that you must live together to be considered common law married. You don’t automatically become common law married to someone just because you live with them for six months or 10 years or 40 years. 

Optionally, a couple can sign a Declaration of Informal Marriage and file it with the county clerk in the county where they live. Having this document on file validates the common law marriage, making it easier to prove that you really are married.

The burden of proving the existence of a common law marriage falls on the spouse seeking a divorce. This can often be difficult, because no matter how long you lived together or how many kids you raised together, your former partner needs to agree that you were married. As you might imagine, there are reasons why a partner might deny the marriage, so be prepared for that.

Please note: If you want to obtain a divorce, a proceeding to prove the marriage must be initiated within two years of your date of separation. Otherwise, Texas law presumes a common law marriage never existed, meaning you can’t go through the divorce process.

Dividing Property at the End of a Common Law Marriage

If you are able to establish that you were legally married, then your divorce will be treated the same as any other divorce. That means any property or debt acquired by either spouse during the marriage is considered community property.

In Texas, courts split all community property/debt in a way that is “just and right.” This means “equitably,” but not equally. In other words, you aren’t guaranteed to get a 50/50 split. Instead, courts determine what is equitable by considering factors like:

  • Each spouse’s earning power
  • The health of each spouse
  • The child custody arrangement, if any
  • Future employment prospects for each spouse

Talk to a Fort Worth Divorce Lawyer About Ending Your Common Law Marriage

The Fort Worth office of the Schneider Law Firm, P.C. has successfully resolved property division issues on behalf of several clients. Our attorneys understand the issue and would be happy to explain how we can help. To get started, call 817-755-1852  or send us a message to schedule a free initial consultation.