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Do Common Law Couples Have to Go through the Divorce Process?

Posted by Chris Peterson | Jul 13, 2015 | 0 Comments

Do Common Law Couples Have to Go through the Divorce Process?

Do Common Law Couples Have to Go through the Divorce Process?Texas is currently one of only nine states that recognize common law marriage. Whether yours is legally common law, and if you must formally divorce to separate, depends on a number of factors. Your Bryan divorce attorneys will be able to analyze your specific circumstances and assist you.

The Tradition of Common Law Marriage

It might seem surprising that in an age when  church and state were not separate, the Middle Ages, common law marriage had its roots, but this was from convenience. In small, out of the way rural areas it was often very difficult to find a priest, so it was deemed that  a couple could establish themselves among the community as married by “holding out to the community” that they were . This practice found its way into the new world as well. The size of Texas is regarded as a major reason the practice remained legal in this state when other states eventually no longer used the law.

Marrying and Divorcing under Common Law

There are two ways in which you can become married by common law in this state: either by competing and filing form at the county court swearing that you are married under common law; or living together as husband and wife. This includes several steps:

  • Holding out to the community that you are married under common law, which means you share a home and proclaim yourselves married in the community.
  • You are both age 18 or older.
  • You consider yourselves to be married.

If later you wish to divorce, whether or not you have to go through a formal court proceeding depends upon several matters. If you file a sworn form with the county court, you must go through a formal divorce. If, however, you held out to the community that you are married, you may not need the formal process. This depends in part upon how long you were married under common law. Also, if you have acquired considerable assets, such as real estate, you will need to use the formal process in order to ensure that titles are clear and that the marital estate is equitably divided.

There are reasons why you may want to divorce in a court even when it isn't legally necessary. For instance, assuming children were produced during the marriage, you may want to make sure that they receive proper child support and visitation.

For Legal Assistance with Your Common Law Divorce

If you are divorcing from a common law marriage, you may find that it is in your best interests to work with Bryan divorce attorneys. Call Peterson Law Group today to arrange a consultation at 979-703-7014 or 936-337-4681.

About the Author

Chris Peterson

Chris Peterson is the owner of Peterson Law Group. He practices primarily in the areas of wills, trusts and estate planning; probate and trust administration; elder law; and business law. Chris is also the owner of Brazos 1031 Exchange Company.


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