Texas common law marriages, legally termed "informal marriages" under Texas Family Code § 2.401, require the same formal divorce process as ceremonial marriages. Filing fees range from $300 to $400 depending on the county, with a mandatory 60-day waiting period before finalization. The critical distinction is timing: if you separate from your common law spouse and do not file for divorce within two years, Texas law creates a rebuttable presumption that no marriage ever existed, potentially eliminating your rights to community property division, spousal support, and inheritance protections.
Key Facts: Texas Common Law Marriage Divorce
| Requirement | Details |
|---|---|
| Filing Fee | $300-$400 (varies by county) |
| Waiting Period | 60 days mandatory |
| State Residency | 6 months |
| County Residency | 90 days |
| Grounds | No-fault (insupportability) or fault-based |
| Property Division | Community property ("just and right" standard) |
| Two-Year Rule | Presumption against marriage if no action filed within 2 years of separation |
What Is a Common Law Marriage in Texas?
A common law marriage in Texas exists when three specific elements are proven simultaneously: (1) both parties agreed to be married, (2) they lived together in Texas as spouses, and (3) they represented to others that they were married. Under Texas Family Code § 2.401(a)(2), these three requirements must all exist at the same time, and the party claiming the marriage bears the burden of proof in court proceedings. Texas does not require any specific duration of cohabitation, meaning the commonly cited "seven-year rule" is a myth with no basis in Texas law.
Legal Requirements Under Texas Family Code
The Texas Family Code establishes clear criteria for informal marriages that courts strictly interpret. Under Section 2.401(a), a marriage may be proved by evidence that either (1) a declaration of informal marriage has been signed and filed, or (2) the couple agreed to be married, lived together in Texas as spouses, and represented to others that they were married.
Additional statutory restrictions apply:
- Both parties must be at least 18 years of age under Section 2.401(c)
- Neither party may be currently married to someone else under Section 2.401(d)
- The marriage must have been created in Texas or recognized by another jurisdiction that validates common law marriages
The "Holding Out" Requirement Explained
Texas courts require more than occasional introductions as husband and wife to satisfy the "holding out" element. The purpose of this requirement under Texas caselaw is to ensure there is no "secret" common law marriage. Courts examine whether the couple had a reputation in the community for being married, not whether they told a few select friends. Evidence of holding out includes filing joint tax returns, signing leases together as spouses, sharing a surname, listing each other on health insurance policies, naming each other as beneficiaries on life insurance, making joint loan applications, and having children together.
Why Common Law Divorce in Texas Requires Formal Court Proceedings
Once a common law marriage is established under Texas law, it carries identical legal weight to a ceremonial marriage and requires the same formal divorce process to dissolve. There is no such thing as a "common law divorce" in Texas. Under Texas Family Code Chapter 6, the court makes no distinction between ceremonially married and informally married couples regarding divorce requirements, property division, spousal support eligibility, or child custody determinations.
The Two-Year Presumption Rule
The most critical timeline in Texas common law divorce is the two-year separation rule. Under Texas Family Code § 2.401(b), if court proceedings to prove a common law marriage are not commenced before the second anniversary of the date the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married. This means waiting more than two years after separation significantly increases your burden of proof and may eliminate your ability to claim marital rights entirely.
Texas Common Law Divorce Filing Requirements
Filing for divorce from a common law marriage in Texas follows the same procedural requirements as any other divorce. The petitioner must establish residency and file in the appropriate district court with proper documentation proving the existence of the informal marriage.
Residency Requirements
Under Texas Family Code § 6.301, either spouse must have been a Texas domiciliary for the preceding six months and a resident of the filing county for at least 90 days immediately before filing. These requirements apply to either the petitioner or respondent, so if your spouse meets both residency criteria, you may file even if you recently moved to Texas.
Military service members receive special consideration under Texas Family Code § 6.303. Personnel who previously lived in Texas but relocated due to military orders maintain their Texas residency status during their absence and may file for divorce in Texas upon return if they otherwise meet standard requirements.
Filing Fees by Major Texas Counties (2026)
| County | Filing Fee | Notes |
|---|---|---|
| Harris County | $350-$365 | Higher fee with children |
| Dallas County | $318-$350 | Varies by case type |
| Tarrant County | $300-$350 | Fee schedule revised 01/02/2026 |
| Bexar County | $300-$350 | Check current schedule |
| Bell County | $350 | Effective 01/01/2026 |
| Travis County | $300-$350 | Austin area |
As of May 2026, verify current fees with your local District Clerk before filing, as county fees change periodically.
Fee Waivers for Low-Income Filers
Texas Rule of Civil Procedure 145 permits fee waivers for individuals who cannot afford filing costs. Courts grant waivers for those receiving government benefits, earning below 125% of the federal poverty level (approximately $19,305 annually for an individual in 2026), or demonstrating genuine financial hardship. To request a waiver, file a Statement of Inability to Afford Payment of Court Costs with your divorce petition.
Proving Your Common Law Marriage in Divorce Court
When filing for divorce from a common law marriage, the petitioner must prove the marriage existed under the three-element test of Texas Family Code § 2.401. If your spouse contests the marriage, you bear the burden of presenting sufficient evidence to a judge or jury.
Types of Evidence Texas Courts Accept
The strongest evidence of a common law marriage is a filed Declaration of Informal Marriage, which can be obtained from any Texas county clerk for approximately $36-$41. However, most common law couples never file this declaration, requiring alternative proof.
Acceptable evidence includes:
- Joint federal and state tax returns filed as "married"
- Signed leases or deeds listing both parties as spouses
- Joint bank accounts with spousal designations
- Health insurance policies naming the partner as spouse
- Life insurance beneficiary designations as spouse
- Joint loan applications listing married status
- Government benefit applications listing partner as spouse
- Testimony from family, friends, and community members who can confirm the couple held themselves out as married
- Birth certificates of children listing both parties as parents
- Social media posts and photographs (limited weight without corroborating evidence)
What Courts Examine
Texas courts analyze the totality of circumstances rather than relying on any single piece of evidence. A 2026 Texas appellate decision emphasized that courts look for consistent, community-wide representation of marital status, not isolated social media posts or occasional introductions. The question is whether the couple had a reputation in the community for being married.
The 60-Day Waiting Period
Texas imposes a mandatory 60-day waiting period under Texas Family Code § 6.702 from the date the divorce petition is filed. The absolute minimum time for any Texas divorce, including common law divorce, is 61 days from filing. This waiting period cannot be shortened through mutual agreement or emergency circumstances.
Limited Exception for Family Violence
The only exception to the 60-day waiting period applies under Texas Family Code § 6.702(c) when the respondent has been convicted of or received deferred adjudication for family violence against the petitioner, or when the petitioner has an active protective order based on family violence findings. No other circumstances permit waiver of the waiting period.
Property Division in Texas Common Law Divorce
Texas is a community property state, meaning all property acquired during a marriage, whether formal or informal, is presumed to be owned equally by both spouses. Under Texas Family Code § 7.001, courts must divide community property in a manner that is "just and right," which may or may not result in an equal 50/50 split.
Community Property vs. Separate Property
| Property Type | Definition | Division Treatment |
|---|---|---|
| Community Property | Assets acquired during the marriage | Divided "just and right" (typically 50-60% range) |
| Separate Property | Assets owned before marriage, gifts, or inheritance | Remains with original owner |
| Commingled Property | Separate property mixed with community funds | May be characterized as community property |
The "Just and Right" Standard
Unlike states requiring strict 50/50 division, Texas courts have discretion to award disproportionate shares under the "just and right" standard. Courts consider factors established in Murff v. Murff, 615 S.W.2d 696 (1981):
- Fault in the marriage breakdown
- Each spouse's earning capacity and education
- Length of the marriage
- Age and health of both parties
- Custody of minor children
- Size of each spouse's separate estate
- Business opportunities and future earning potential
Disproportionate divisions typically range from 50% to approximately 55-60%, with larger disparities reserved for cases involving significant fault or dramatic differences in earning capacity.
Proving Separate Property
The spouse claiming separate property must prove it by "clear and convincing evidence," a higher standard than the typical preponderance threshold. Documentation such as pre-marriage account statements, inheritance records, or gift documentation is essential to establish separate property claims.
Child Custody and Support in Common Law Divorce
Children born to common law married parents have identical rights to those born to ceremonially married parents. Texas courts apply the same "best interest of the child" standard under Texas Family Code § 153.002 for custody determinations and the same child support guidelines under Texas Family Code § 154.125 for support calculations.
Child Support Calculation
Texas child support is calculated as a percentage of the non-custodial parent's net monthly resources:
| Number of Children | Percentage of Net Resources |
|---|---|
| 1 child | 20% |
| 2 children | 25% |
| 3 children | 30% |
| 4 children | 35% |
| 5+ children | 40% |
Inheritance Rights and Common Law Marriage
A common law spouse has identical inheritance rights to a ceremonially married spouse under Texas intestate succession laws. If your common law spouse dies without a will, your inheritance depends on whether property was community or separate and whether your spouse had children from other relationships.
Community Property Inheritance
If your common law spouse dies without children, you inherit all community property. If all children are also your children, you inherit all community property. However, if your spouse had children from a prior relationship, you keep your half of community property, but your spouse's half passes directly to those children.
Separate Property Inheritance
Under Texas intestate succession laws, a surviving spouse inherits exactly one-third of the deceased's separate personal property, with the remaining two-thirds passing to children. For separate real property, ownership passes entirely to children, though the surviving spouse retains a life estate (right to use the property during their lifetime).
Declaration of Informal Marriage: Should You File One?
Filing a Declaration of Informal Marriage with your county clerk provides the strongest possible legal proof that your common law marriage exists. The cost ranges from $36 to $41 depending on the county, with an additional $100 charge if proof of Texas residency is not provided.
Benefits of Filing
- Creates conclusive legal evidence of the marriage
- Eliminates disputes about whether a marriage existed
- Simplifies divorce proceedings by removing the burden of proof
- Protects inheritance rights if one spouse dies
- Ensures access to spousal benefits (health insurance, Social Security, etc.)
Warning About False Declarations
Texas law makes falsifying information on a Declaration of Informal Marriage a felony offense, punishable by 2 to 10 years imprisonment and fines up to $10,000.
Contested vs. Uncontested Common Law Divorce
| Factor | Uncontested | Contested |
|---|---|---|
| Timeline | 61-90 days minimum | 6-18 months or longer |
| Cost (no attorney) | $300-$500 | $5,000-$30,000+ |
| Court appearances | 1-2 | Multiple hearings/trial |
| Marriage existence | Both agree it existed | One party denies marriage |
| Property agreement | Full agreement | Disputes require litigation |
Step-by-Step Process for Texas Common Law Divorce
- Gather evidence of your common law marriage (tax returns, leases, witness contacts)
- Determine which county meets residency requirements (6 months state, 90 days county)
- Complete the Original Petition for Divorce (available from Texas Law Help or local court)
- File the petition with the District Clerk and pay filing fees ($300-$400)
- Serve your spouse with divorce papers (or obtain a waiver of service if agreed)
- Wait the mandatory 60-day cooling-off period
- If contested, attend hearings to prove the marriage existed
- Negotiate or litigate property division, custody, and support
- Attend final hearing for judge to approve divorce decree
- Obtain certified copies of the Final Decree of Divorce
Frequently Asked Questions
How long do you have to be together for common law marriage in Texas?
Texas has no minimum time requirement for establishing a common law marriage. The widespread belief that couples must live together for seven years is a myth with no basis in Texas law. Under Texas Family Code § 2.401, a common law marriage is established the moment all three elements exist simultaneously: agreement to be married, cohabitation in Texas, and holding out to others as married.
Do I need a lawyer for a common law divorce in Texas?
While Texas allows self-representation in divorce cases, hiring an attorney is strongly recommended when the opposing spouse contests whether a marriage existed, significant assets or debts require division, children are involved and custody is disputed, or one spouse earns significantly more than the other. Uncontested divorces where both parties agree the marriage existed may be completed pro se with court-provided forms.
What happens if my spouse denies we were common law married?
If your spouse denies the marriage existed, you must prove all three elements under Texas Family Code § 2.401 by a preponderance of evidence. The court will examine tax returns, leases, insurance documents, witness testimony, and other evidence showing you agreed to be married, lived together, and held yourselves out as married. A judge or jury will determine whether sufficient evidence supports your claim.
Can I get spousal support from a common law divorce?
Yes. Texas spousal maintenance (alimony) applies equally to common law and ceremonial marriages under Texas Family Code Chapter 8. Eligibility requires the marriage lasted at least 10 years, or involves family violence, a disability, or a child with a disability requiring substantial care. Maximum maintenance is $5,000 per month or 20% of the paying spouse's gross income, whichever is less.
What is the two-year rule for common law marriage in Texas?
Under Texas Family Code § 2.401(b), if court proceedings are not filed within two years after the parties separated and ceased living together, Texas law creates a rebuttable presumption that no marriage ever existed. This means you must file for divorce or another proceeding asserting the marriage within two years of separation, or face significant difficulty proving the marriage existed.
Does Texas recognize common law marriages from other states?
Texas generally recognizes valid common law marriages created in other states that recognize such marriages under the principle of comity. However, you must prove the marriage was valid under that state's laws. Currently, only a handful of states recognize common law marriage: Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance only), Oklahoma, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia.
How is property divided in a Texas common law divorce?
Texas divides community property (assets acquired during the marriage) in a manner the court deems "just and right" under Texas Family Code § 7.001. While 50/50 division is common, courts may award 55-60% to one spouse based on factors including fault, earning capacity, length of marriage, custody of children, and the size of each spouse's separate estate.
Can I file for common law divorce if I don't know where my spouse is?
Yes. If you cannot locate your spouse after diligent effort, you may request service by publication under Texas Rule of Civil Procedure 109. This involves publishing notice in a newspaper for a specified period. The court may grant a default divorce if your spouse fails to respond, though property division may be limited without the spouse's participation.
What if we only lived together briefly before separating?
The duration of cohabitation does not determine whether a common law marriage exists. If all three elements (agreement, cohabitation, and holding out) existed even briefly, a valid marriage may have been created. However, very short cohabitation periods make it harder to prove you held yourselves out as married, as courts look for a community-wide reputation of being married.
Do I need to prove fault to get a common law divorce in Texas?
No. Texas allows no-fault divorce based on "insupportability" (irreconcilable differences) under Texas Family Code § 6.001. However, proving fault such as adultery, cruelty, or abandonment may result in a more favorable property division. Approximately 95% of Texas divorces are granted on no-fault grounds.
Resources for Texas Common Law Divorce
- Texas State Law Library Common Law Marriage Guide
- Texas Law Help Divorce Resources
- Texas Family Code (Official Statutes)
- Local District Clerk offices for filing requirements and current fees
This guide provides general legal information about Texas common law divorce as of May 2026. Laws change, and individual circumstances vary significantly. Consult with a licensed Texas family law attorney for advice specific to your situation.