Austin Common Law Marriage Divorce Attorney
You may have lived with someone for years, shared a lease or a mortgage, introduced them as your husband or wife, and never once signed a marriage license, yet when the relationship ends, you could be facing a divorce in everything but name. The Law Office of Oprea & Weber is a boutique divorce and family law firm that handles divorce, property division, custody, support, and spousal maintenance for clients in Austin, Travis County, and across Central Texas. For anyone who needs a common law marriage divorce attorney in Austin, the first question is almost never about dividing property. It is whether a marriage exists at all.
Texas calls this an informal marriage, and it is a real marriage with the same legal consequences as a ceremonial one. If it exists, you cannot simply walk away; you must end it through a divorce in district court, and everything the couple built during it is presumptively community property. If it does not exist, the dispute shifts to a very different set of rules about who owns what, and spousal maintenance and community property division are off the table. Which side of that line you land on can decide the outcome of the whole case.
How Texas Decides Whether a Common Law Marriage Exists
Texas recognizes an informal marriage in two ways. The first is paperwork: a couple signs a declaration of informal marriage and files it with the county clerk. The second is conduct. Without a filed declaration, a person asserting the marriage must show three things: the two of you agreed to be married, you lived together in Texas as spouses, and you represented to others that you were married. All three must be present, and the agreement is the element most often fought over.
Notice what the test does not require. Texas sets no minimum period of living together, so there is no magic number of years that converts a relationship into a marriage. A person who is under 18, or who is still legally married to someone else, cannot enter an informal marriage at all. That second point matters more than people expect; a prior marriage that was never properly ended can defeat a later informal marriage claim entirely.
This is where common law cases differ most from ordinary divorces. Evidence replaces the marriage certificate. Courts look at how the couple held themselves out: joint tax returns, insurance and employment forms listing a spouse, leases and loan applications, how friends and family introduced them, whether one partner used the other’s last name, and what each person said under oath in other settings. Inconsistent statements are common. A person who checked “single” on a loan application while telling neighbors “this is my wife” has created a record that the other side will use.
Why Choose The Law Office of Oprea & Weber for an Informal Marriage Divorce
The Law Office of Oprea & Weber is a boutique family law firm serving clients in Austin and throughout Travis, Williamson, Hays, and Bastrop Counties. Our attorneys personally handle your case from the first consultation through the final decree, we keep our caseload intentionally manageable, and you will not be passed to layers of staff or junior associates. Clients get direct attorney access and explanations in plain language, which matters when the legal question at the center of your case is as slippery as whether you were ever married.
Kevin Weber, Attorney, and Karen Oprea, Attorney, both graduated magna cum laude from the University of Michigan Law School. Kevin trained in complex commercial litigation and negotiation at Latham & Watkins in Manhattan, which is useful experience when a case turns on assembling and testing documentary evidence about what two people agreed to and how they presented themselves. Karen has briefed and argued cases before the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Courts of Appeals, and the New York appellate courts, which shapes how we frame a disputed legal question and preserve it if a ruling is challenged. Kevin also mediates family law disputes and represents clients in mediation, so he understands what makes a settlement hold.
We prepare every case for trial and pursue cooperative resolution whenever it is realistic. In a common law case, that balance is important. Sometimes both people agree they were married and the only task is a fair division. Sometimes one person denies the marriage, and the threshold fight has to be won before anything else can be negotiated. Clients have described us as knowledgeable, thorough, and caring, and we try to earn that by telling you early and candidly how strong your position is.
Issues That Come Up in an Informal Marriage Case
- Proving or Disproving the Marriage: The person claiming a marriage carries the burden of proving agreement, cohabitation in Texas, and holding out. Evidence can include joint filings, beneficiary designations, social media posts, and testimony from friends, relatives, and coworkers.
- The Two-Year Presumption: If a proceeding to prove the informal marriage is not started within two years after the couple separated and stopped living together, Texas presumes, subject to rebuttal, that they never agreed to be married. Waiting can quietly cost you your claim.
- Community Property Division: Once a marriage is established, the court divides the community estate in a manner that is just and right. That reaches income earned, homes bought, retirement contributions, and business growth during the marriage, so the date the marriage began is often as contested as its existence.
- Spousal Maintenance: Court-ordered post-divorce support under Family Code Chapter 8 is only available to a spouse, so proving the marriage may open that door. Eligibility is narrow, and a spouse must lack enough property to meet minimum reasonable needs, plus meet a qualifying ground such as a marriage of ten years or longer, a disability, or family violence.
- Children and Conservatorship: A child’s custody, possession schedule, and support are decided regardless of whether the parents were married. If paternity is also unresolved, a Suit Affecting the Parent-Child Relationship may run alongside the divorce.
- Conflicting Statements on Record: Tax returns, loan applications, and insurance forms that describe one partner as single can undercut a marriage claim, while the same documents describing a spouse can strongly support it.
- Prior Marriages and Capacity: A partner who was still legally married to someone else during the relationship, or who was under 18, cannot have formed an informal marriage, which can end the claim before it begins.
What to Do If Your Relationship Ending Might Be a Divorce
Start by deciding which side of the question you are on, because the right moves differ. If you believe you are married and want the court to recognize it, preserve evidence now. Gather tax returns, insurance and employment records naming a spouse, leases, loan and credit applications, cards, photos, messages in which you called each other husband and wife, and the names of people who knew you as a couple. Write down dates: when you agreed to be married, when you began living together as spouses in Texas, and when you separated. Do not delete messages or social media posts, even ones that look unflattering.
Mind the clock. Because of the two-year presumption, a person who waits more than two years after separating to bring a proceeding faces a presumption that no agreement to be married existed, and has to overcome it. You also do not need the other person’s cooperation to file. Either spouse can begin a divorce in Texas, and in a common law case the petition itself usually asks the court to find that a marriage exists, and then to end it.
If you believe you were never married and someone is claiming otherwise, take that seriously rather than ignoring it. A person who is served with a divorce petition has a short window to file a response, and if no answer is filed, the case can move forward by default. Denying the marriage is a defense you must actually raise. Avoid signing any new document that calls the other person a spouse, and avoid casual statements that you were “married” in text messages or to others while the dispute is pending.
On the procedural side, to file for divorce at least one spouse must have lived in Texas for six months and in the filing county for 90 days. Once a petition is filed, Texas requires a 60-day waiting period before a divorce can be granted, counted from the filing date rather than service, and agreement between the spouses does not waive it. The exceptions are narrow and tied to family violence, such as a conviction or deferred adjudication for a family violence offense against the petitioner or an active protective order. Divorce suits for Austin residents are heard in the Travis County district courts at the Civil and Family Courts Facility in downtown Austin, and contested hearings and trials there are held in person unless the parties agree or the judge directs otherwise. Families in neighboring counties file in Williamson County district courts in Georgetown, Hays County district courts in San Marcos, or Bastrop County district courts in Bastrop. If safety is a concern, a protective order can be sought alongside the case, and the court can address temporary orders for children, housing, and bills while everything is pending.
Common Law Marriage Compared With Dating, Cohabitation, and Ceremonial Marriage
People often assume that living together long enough creates a marriage. In Texas, it does not. Two people can share a home, a bank account, and a child for fifteen years and still not be married if they never agreed to be and never presented themselves as husband and wife. The reverse is also true; a couple that has lived together only briefly can form an informal marriage if all three elements are met.
The consequences of the difference are large. If no marriage exists, there is no divorce, no community property presumption, and no spousal maintenance. Property disputes are resolved under ordinary ownership, contract, and equity principles, usually favoring whoever holds title or can document contributions. Child custody, possession, and support still go through a Suit Affecting the Parent-Child Relationship, and that process looks the same whether or not the parents were married. Texas has also revised its possession order framework for new cases where parents live within 50 miles of each other, so schedules negotiated today may differ from what a friend with an older order received.
Compared with a ceremonial marriage, the informal kind carries one more risk: uncertainty about when it began and what property it reaches. A ceremonial marriage has a date on a license. An informal marriage begins when all three elements first came together, which a court may have to decide from competing accounts, and that date determines which assets are community property.
Common Law Marriage Divorce Questions Answered
Is common law marriage legally recognized in Texas?
Yes. Texas calls it informal marriage, and it is treated the same as a ceremonial marriage once it is established. Ending it requires a divorce through the courts.
How long do we have to live together to be common law married in Texas?
There is no required length of time. What matters is whether you agreed to be married, lived together in Texas as spouses, and told others you were married. A long relationship without those elements is not a marriage, and a short one with them can be.
Can I file for divorce if my spouse denies we were ever married?
Yes. You can file a petition and ask the court to find that an informal marriage exists and then dissolve it. The court will first resolve whether a marriage was formed, so you will need evidence, not just your own account.
What happens if we separated more than two years ago?
Texas presumes that a couple did not agree to be married if no proceeding to prove the marriage is started within two years after they separated and stopped living together. That presumption can be rebutted with evidence, but it is a real obstacle, so acting sooner is better.
Do we need to sign a declaration of informal marriage to be married?
No. A signed and filed declaration is one way to establish the marriage, but a couple can also prove it by showing the agreement, the cohabitation in Texas, and the holding out to others. A filed declaration just makes the proof simpler.
Can I get spousal maintenance after a common law divorce?
Possibly, if the marriage is proven and you meet the statutory requirements. You must lack enough property to meet your minimum reasonable needs and fit a qualifying ground, such as a marriage of ten years or longer where you cannot earn enough, an incapacitating disability, or family violence. Even then, the amount and duration are capped by statute.
Does the divorce process change when the marriage is informal?
The residency rules, the 60-day waiting period, temporary orders, mediation, and final decree work the same way. The difference is the added early question of proving the marriage, which can mean more discovery and a hearing before property is addressed.
What if my partner was still legally married to someone else?
A person who is still legally married to another cannot enter an informal marriage, so a claim based on that period would likely fail. If the earlier marriage ended and the couple continued living together as spouses afterward, the facts need careful review.
Are children treated differently if my partner and I were never married?
Custody, possession, and child support are decided based on the child’s best interest whether or not the parents were married. If parentage has not been legally established, a Suit Affecting the Parent-Child Relationship can resolve it together with conservatorship and support.
Can our case be resolved without a trial?
Often, yes. Even when the existence of the marriage is disputed, parties frequently settle through mediation or negotiation once the evidence is clear. Kevin Weber both mediates and represents clients in mediation, and we prepare every case as if it may be tried while looking for a sensible agreement.
How long does a common law marriage divorce take in Travis County?
The 60-day waiting period is the minimum. An agreed case can finish soon after that, while a case that first requires proof of the marriage, plus disputed property or children, commonly takes many months, depending on the court’s schedule and how quickly the issues resolve.
Serving Common Law Marriage Divorce Clients Across Austin and Central Texas
We represent clients throughout Austin and Travis County, from Downtown, Clarksville, and Hyde Park to Zilker, Barton Hills, South Congress, and East Austin. Our reach continues through North Loop, Mueller, Cherrywood, and Windsor Park, out to Circle C, Westlake, Bee Cave, Lakeway, and Pflugerville. Within Travis County we also serve families in Manor, Del Valle, Jollyville, and the Lost Creek area.
North of Austin, we work with clients in Williamson County, including Round Rock, Cedar Park, Leander, Georgetown, Hutto, Taylor, and Liberty Hill. To the south in Hays County, we serve Kyle, Buda, San Marcos, Dripping Springs, and Wimberley. In Bastrop County we represent families in Bastrop, Elgin, Smithville, and Cedar Creek. Whether your case is heard in a Travis County district court or one in a neighboring county, the question of whether an informal marriage exists is handled the same way, and we tailor the work to the facts of your relationship.
Talk With an Austin Common Law Marriage Divorce Lawyer
When the marriage itself is uncertain, early decisions about evidence, filing, and timing can shape everything that follows. The Law Office of Oprea & Weber can review the facts of your relationship, tell you plainly whether a marriage is likely to be found, and outline what that means for property, support, and your children. If you need an Austin common law marriage divorce lawyer who will personally handle your case from start to finish, call to schedule a consultation.