Many people are familiar with the term "common law marriage", in Texas this idea is called an informal marriage. Not all states recognize informal marriage, but fortunately for some, Texas recognizes the informal marriage to the same degree as a formal one. So if you are a part of an informal marriage then you cannot dissolve it merely by pretending it never happened. To dissolve an informal marriage you either need to get a divorce, annulment, or one of the parties must have died. To actually dissolve an informal marriage it is wise to seek the counsel of a Houston divorce lawyer, but read on to learn more.
You may think that you have are a party to an informal marriage but the question as to whether or not you are depends on your specific circumstances and whether or not you meet all of the requirements set out in the Texas Family Code regarding informal marriages.
What Does it Take to be Informally Married in Texas?
Marriage in Texas happens in two ways, formally and informally. A formal marriage requires a marriage license obtained by the future spouses and a wait of 72 hours followed by a ceremony completed by someone who is permitted by law to perform a marriage ceremony, (a religious leader or a judge for example). An informal marriage comes into being when two people who are over 18 years of age agree to be married, live together in Texas as a married couple, and represent to others that they are married. If you ever need to prove an informal marriage, then those are the items that will certainly need to be addressed. An example of one thing that can help prove that you hold yourself out as spouses is filing taxes together as a married couple and introducing each other to others as husband and wife.
If I am in this Situation is There a way for Me to Prove My Informal Marriage Before Divorce?
There is a way to help prove that you and your spouse intended to be married. Texas has something called a Declaration of Informal Marriage. You can get one of these forms from your county clerk's office and file a completed form with the clerk. The form is very powerful and is similar in effectiveness as a marriage license. It isn't a foolproof way to prove an informal marriage but it certainly makes it much more difficult for someone trying to disprove the existence of a marriage. If you are a party to an informal marriage and you choose not to file a Declaration of Informal Marriage then to obtain a divorce you must be ready to prove that you meet all of the statutorily required elements of an informal marriage.
Should I get a Divorce if I am a Party to an Informal Marriage?
Although there is an expense involved in hiring a divorce lawyer to obtain a divorce, and you may think that because there are no records of the marriage that one is not needed, there are several good reasons to get a divorce rather than just going your separate ways. Firstly, Texas is a community property state which means that everything that was acquired during marriage is divisible between the spouses upon divorce. So if you and your spouse have acquired a great deal of property during the time you were together then you will be entitled to a portion of certain things even if they are not in your name. For example, if your spouse has a retirement account that he or she built up during marriage then you would be entitled to a share of it. You wouldn't get any of it if you just went your separate ways. This idea also is indicative of why one party may want to dispute the existence of an informal marriage.
A person may want to obtain a divorce to divide up the marital property now before it becomes much greater. For example if you anticipate making much more money in the future. If you did not get a divorce and chose to go your separate ways then you stand a chance of your partner returning much later and suing you for a divorce and potentially being entitled to community property that was acquired during separation. (Yes that is right, even if you are separated community property can still be acquired).
What are the Best Ways to Defend Against a Claim of Informal Marriage?
If you stopped living with the other party two or more years before the filing of the claim of informal marriage then the party who is trying to validate the marriage must overcome the presumption that no marriage existed. Another way would be if either of the parties lacked the capacity to enter into a marriage, what constitutes capacity to marry is defined by statute. Additionally if a party was already married before entering into the agreement to be married to you then the marriage to you would be considered void.
Informal marriage and divorce in general is a complicate process with many statutorily defined rules that will need to be addressed. If you are contemplating divorce then it would be wise for you to consult with an experienced Houston divorce attorney to help you navigate your way through all the pitfalls that could potentially develop if you decide to go at it alone.
Tags: Divorce, Property Division
Chad Zubi Houston Family and Criminal Law Attorney.