To file for a common law divorce in Texas, you file the same Original Petition for Divorce used to end any marriage, but you also have to prove the informal marriage existed in the first place. Texas treats an informal marriage as legally identical to a ceremonial one, so there is no shortcut for ending it: you need a court order dissolving the marriage, dividing property, and addressing custody if there are children. Moving out and calling yourself single does not do it.
Prove the Informal Marriage Existed
This is the step that separates a common law divorce from a standard one. Under Texas Family Code Section 2.401, you have to establish three elements: you and your spouse agreed to be married, you lived together in Texas after that agreement, and you held yourselves out to others as a married couple.
The “holding out” element is where most cases turn. Courts look at the full picture of how the relationship was presented. Using the same last name, filing joint tax returns, calling each other husband or wife, listing a spouse on insurance forms, and sharing joint bank accounts all count. No single item is required, but volume helps.
If you and your spouse filed a Declaration of Informal Marriage with the county clerk, the job is much easier. That signed declaration is standalone proof under Section 2.401(a)(1) and creates a strong presumption the marriage is valid. Without a declaration, you rely on the three-element test and whatever documentation you can gather.
Watch the Two-Year Clock After Separation
Texas law creates a rebuttable presumption that no marriage existed if you don’t start a legal proceeding within two years after you and your spouse separated and stopped living together.1State of Texas. Texas Family Code 2.401 – Proof of Informal Marriage You do not lose the right to file after two years, but the legal deck gets stacked against you. Instead of walking in and presenting evidence, you face a presumption you have to overcome before the court will recognize the marriage at all.
That makes proving the marriage harder and more expensive, often requiring stronger documentation and witness testimony. If community property, retirement accounts, or custody rights are on the table, waiting past two years is one of the costliest mistakes you can make. File promptly.
Meet the Residency Requirements
At least one spouse must have lived in Texas for the previous six months and in the county where you file for at least 90 days before the petition date.2Texas Courts. Divorce Set 1 Uncontested, No Minor Children, No Real Property Instructions and Forms You file with the District Clerk in that county. If you and your spouse live in different Texas counties, you can file in either one, so long as the 90-day threshold is met for the county you choose.
Military families get some flexibility. Time spent outside Texas on military orders still counts toward residency for both the service member and an accompanying spouse.
Prepare and File the Original Petition for Divorce
The document that starts the case is the Original Petition for Divorce. Before you fill it out, gather:
- Full legal names, dates of birth, and Social Security numbers for both spouses and any children born or adopted during the marriage
- Dates showing how long you and your spouse have lived in Texas and in your current county
- An inventory of property acquired during the marriage (real estate, vehicles, bank accounts, retirement accounts) and shared debts (credit cards, car loans, mortgages)
- If minor children are involved, details about their living arrangements, schooling, and healthcare coverage
On the petition, indicate that you are seeking a divorce from an informal marriage rather than a ceremonial one. Official forms are available from the District Clerk’s office and through TexasLawHelp.org, which offers form sets tailored to different situations (with or without children, with or without real property). Getting the classification wrong can result in the court rejecting your petition, so pay attention to the checkboxes distinguishing informal from formal marriages.
Filing fees in most Texas counties fall between $250 and $350, and can run higher when children are involved or the county adds its own fees. If you cannot afford the cost, submit a Statement of Inability to Afford Payment of Court Costs, which asks the court to waive the fee.3Texas Courts. Statement of Inability to Afford Payment of Court Costs or an Appeal Bond The court reviews your finances and decides whether to grant the waiver.
Notify Your Spouse
After filing, your spouse must receive formal notice. Texas does not let you hand-deliver the papers yourself. A constable, sheriff, or private process server delivers the documents in person, then files a Return of Service form with the court confirming when and where delivery happened. Private process servers typically charge between $50 and $150, depending on location and how many attempts are needed.
There is a faster route if your spouse is cooperative. They can sign a Waiver of Service in front of a notary public, which tells the court they received notice voluntarily. That can shave weeks off the timeline and save the cost of a process server. The waiver must be properly notarized to count.
If your spouse is avoiding service or you genuinely don’t know where they are, you may eventually be able to serve by publication, posting notice in a local newspaper. That option requires court approval and adds fees and waiting time. It is a last resort.
Use the 60-Day Waiting Period
Texas imposes a mandatory 60-day waiting period between the date you file and the earliest a judge can finalize the divorce. There are two exceptions: your spouse has been convicted of or received deferred adjudication for a family violence offense against you or a household member, or you have an active protective order against your spouse based on family violence during the marriage.
The wait is not dead time. If you need immediate relief, ask the court for temporary orders covering:
- Child custody and visitation while the divorce is pending
- Interim child and spousal support to cover living expenses
- Property restraints preventing either spouse from selling, hiding, or destroying community property
Temporary orders stay in effect until the judge signs the final decree. Many Texas counties also have standing orders that kick in automatically when a divorce is filed, restricting both parties from major financial moves or from disrupting the other’s access to the children. Check with your county’s District Clerk to see whether a standing order applies.
Attend the Prove-Up Hearing and Sign the Final Decree
Once the 60 days have passed, you attend a final hearing commonly called a “prove-up.” You give testimony under oath confirming that the informal marriage existed, that the residency requirements are met, and that you and your spouse agree on the terms (or, if contested, that the court has enough evidence to decide). Uncontested prove-ups are often brief, sometimes under 15 minutes.
The judge then reviews the Final Decree of Divorce, which lays out the division of assets and debts, custody arrangements, and any support obligations. Once satisfied, the judge signs the decree, it is filed with the clerk, and you are legally single.
If you changed your name during the marriage and want to revert, request the change in the final decree. The decree then becomes the legal document you use to update your driver’s license, Social Security card, and other records. Skip this step and you will have to file a separate court petition later, which costs more and takes longer.
Handle Community Property, Retirement, and Debts
Texas is a community property state, so the court presumes that everything acquired during the marriage belongs equally to both spouses. That includes income, real estate, vehicles, investments, and debts. Property owned before the marriage or received as a gift or inheritance during it is generally separate, but you need documentation to prove that distinction. The court divides community property in a manner it considers “just and right,” which is not always a 50/50 split.
Retirement accounts need special attention. If either spouse has a 401(k), pension, or similar employer-sponsored plan, dividing it requires a Qualified Domestic Relations Order, or QDRO. Without a valid QDRO, the plan administrator cannot legally pay benefits to anyone other than the account holder, regardless of what the divorce decree says.4U.S. Department of Labor. Qualified Domestic Relations Orders Under ERISA – A Practical Guide to Dividing Retirement Benefits The QDRO is a separate court order that instructs the plan to transfer a specified portion of one spouse’s benefits to the other. Forgetting to file one is a common and expensive oversight.
Deadlines That Hit After the Decree
A few dates matter as much as the filing date itself.
Tax filing status. Your federal filing status depends on whether you are married or divorced on December 31 of the tax year. If your divorce is finalized by that date, the IRS considers you unmarried for the entire year, which changes what filing statuses are available.5Internal Revenue Service. Publication 504, Divorced or Separated Individuals Property transfers between spouses that happen within one year after the marriage ends, or that are related to the divorce, are generally tax-free at the federal level.6Office of the Law Revision Counsel. 26 U.S. Code 1041 – Transfers of Property Between Spouses or Incident to Divorce
Health insurance. If you are covered under your spouse’s employer-sponsored plan, divorce is a qualifying event that triggers your right to continue coverage through COBRA for up to 36 months, though you pay the full premium (up to 102 percent of the plan cost).7U.S. Department of Labor. Continuation of Health Coverage (COBRA) You must notify the plan administrator within 60 days of the divorce to preserve COBRA eligibility.8U.S. Department of Labor. FAQs on COBRA Continuation Health Coverage for Workers Miss that window and you lose the right entirely. A divorce also opens a 60-day Special Enrollment Period on the Health Insurance Marketplace, which is often cheaper, especially with premium subsidies.
Social Security. If your common law marriage lasted at least 10 years before the divorce became final, you may be eligible to collect Social Security benefits based on your ex-spouse’s earnings record once you are at least 62 and unmarried.9Social Security Administration. RS 00202.005 Divorced Spouse Collecting on your ex-spouse’s record does not reduce their benefit or affect a current spouse’s benefit. If the marriage is near the 10-year mark, the timing of the final decree can decide whether you qualify, and finalizing a month too early can cost tens of thousands of dollars in lifetime benefits.