To end a common law marriage in Texas, you file for divorce in district court under the same rules that apply to any other marriage, and you generally need to do it within two years of separating. Texas treats an informal marriage as a marriage, full stop. The property division, custody, and maintenance rules are identical. What is different is that you may have to prove the marriage existed before the court can dissolve it, and a statutory clock can quietly close that door if you wait too long after separating.
The Two-Year Clock After Separation
This is the deadline that catches people off guard. If you separate from your common law spouse and no legal proceeding to prove the marriage is filed within two years of the day you stopped living together, Texas law presumes no marriage agreement ever existed.1State of Texas. Texas Code Family Code 2.401 – Proof of Informal Marriage
The presumption is rebuttable, meaning you can still try to prove the marriage after two years, but the burden shifts to you and the evidence bar rises. If community property, spousal maintenance, or any other right that flows from being married matters to you, file inside the two-year window. If you are the one who wants to argue no marriage existed, letting the clock run works in your favor.
Filing the Divorce Petition
The case starts when one spouse files an Original Petition for Divorce in a Texas district court. At least one spouse must have lived in Texas for the past six months and in the filing county for the past 90 days.2State of Texas. Texas Code Family Code 6.301 – General Residency Rule for Divorce Suit Filing before you meet those thresholds gets the case dismissed.
Filing fees typically run between $250 and $400 depending on the county. If you cannot afford it, you can file a sworn statement of inability to pay and ask the court to waive the fee.
Grounds
Most people file on insupportability, the Texas version of no-fault divorce. It means the marriage has broken down due to conflict or personality differences with no reasonable expectation of reconciliation, and neither spouse has to prove wrongdoing.3State of Texas. Texas Code Family Code 6.001 – Insupportability
Fault-based grounds are also available: cruelty, adultery, a felony conviction with imprisonment of at least one year, abandonment for at least one year, living apart for at least three years, and confinement in a mental hospital. Fault can matter because it can push the property division in favor of the innocent spouse.
Proving the Marriage Existed
In a ceremonial divorce, you hand the court a marriage certificate. In a common law divorce, you often have to prove the marriage first. If you and your spouse signed a Declaration of Informal Marriage at the county clerk’s office, that document is your proof.1State of Texas. Texas Code Family Code 2.401 – Proof of Informal Marriage
Without a declaration, you need to show three things existed at the same time: an agreement to be married, living together in Texas as spouses, and holding yourselves out to others as married.1State of Texas. Texas Code Family Code 2.401 – Proof of Informal Marriage Useful evidence includes joint tax returns, shared last names, joint leases and bank accounts, insurance beneficiary forms listing a spouse, and testimony from friends and family who heard you refer to each other as husband or wife. One absolute bar: the marriage is void if either of you was still legally married to someone else when the relationship began.4State of Texas. Texas Code Family Code 6.202 – Marriage During Existence of Prior Marriage If a prior marriage was later dissolved, a court can recognize the informal marriage from the point forward when the three elements were met.
Dividing Property
Texas is a community property state. The court divides the marital estate in whatever way it considers just and right, weighing each spouse’s rights and the needs of any children.5State of Texas. Texas Code Family Code 7.001 – General Rule of Property Division Just and right does not mean 50/50. Earning capacity, health, age, fault in the breakup, and whether one spouse wasted community assets all factor in.
Here is where common law divorces differ meaningfully from ceremonial ones: the inception date of the marriage decides what counts as community property. Everything acquired between that start date and the divorce is presumed community; anything you owned before, or received as a gift or inheritance during, stays separate. In an informal marriage the start date is rarely obvious, and spouses often fight over it because pushing the date earlier enlarges the community estate. Documentation showing when you started acting as a married couple, filing jointly, sharing accounts, using the same last name, is worth keeping and producing.
Children
Children of a common law marriage are treated exactly like children of a ceremonial marriage. Every custody and visitation decision runs through the best interest of the child standard.6State of Texas. Texas Code Family Code 153.002 – Best Interest of Child Texas calls it conservatorship rather than custody. The court divides parental rights and duties and sets a possession schedule that spells out when each parent has the kids.
Child support uses a percentage of the paying parent’s net monthly resources, tied to the number of children:7State of Texas. Texas Code Family Code 154.125 – Application of Guidelines to Net Resources
- One child: 20%
- Two children: 25%
- Three children: 30%
- Four children: 35%
- Five children: 40%
- Six or more: not less than the amount for five children
Courts can deviate when circumstances warrant it, but the guideline percentages are the starting point in almost every case.
Spousal Maintenance
Texas rarely awards spousal maintenance. A court will order it only if the spouse asking for support lacks enough property, including separate property, to meet minimum reasonable needs, and one of the following also applies: the other spouse was convicted of or received deferred adjudication for family violence during the marriage; the requesting spouse has a physical or mental disability that prevents self-support; the marriage lasted at least 10 years and the requesting spouse cannot earn enough to meet their needs; or the requesting spouse is the primary caretaker of a child of the marriage who has a disability requiring substantial care.8State of Texas. Texas Code Family Code 8.051 – Eligibility for Maintenance
When awarded, the amount is capped at $5,000 per month or 20% of the paying spouse’s gross monthly income, whichever is less. Duration is capped by the length of the marriage:9State of Texas. Texas Code Family Code 8.054 – Duration of Maintenance Order
- 10 to 20 years of marriage: up to 5 years of maintenance
- 20 to 30 years: up to 7 years
- 30 years or more: up to 10 years
For an informal marriage, the length is measured from the inception date, so the fight over when the marriage began can decide whether maintenance is even on the table. A dispute over whether you were married 9 years or 11 years is really a dispute over whether the 10-year threshold is met.
Waiting Period and Finalizing
Texas imposes a 60-day cooling-off period after the petition is filed before a court can grant the divorce.10Texas State Law Library. Finalizing the Divorce The count starts the day after filing and includes weekends and holidays. Two exceptions waive the wait: the other spouse has been convicted of or received deferred adjudication for family violence against you or a household member, or you have an active family-violence protective order against your spouse.
The non-filing spouse has to be formally served with the papers, either through a process server or constable, or by signing a waiver if they cooperate. If both sides agree on the terms, the Final Decree of Divorce is drafted, signed, and submitted to the judge after the 60 days have run. The decree lays out property division, conservatorship, child support, and any maintenance. If you cannot agree, the case goes to trial and the judge decides the open issues. Contested common law divorces, especially ones where the parties disagree about whether the marriage existed or when it started, are more likely to reach trial than typical ceremonial cases, which is another reason to line up your proof early.