Legal Question in Family Law in Texas
common law marriages
My ex and I were together for just shy of 7 years in a commona law marriage. We lived as a married couple, referred to each other as ''husband'' and ''wife''. Everyone also referred to us as being married. I used his last name, we filed taxes and did other financial matters jointly (as a married couple). We also have to children. He left to go to work one day and never came home, five months later I tracked him down living with another female and she claimed to be engaged to him. Total shock to us. I wish to no longer associate myself with him in any matter, and I do not want to be liable for anything that has to do with him. My question is since we lived as and were recognized by everyone (including the government) as a married couple should I file for a divorce. I know that there is a certificate for common law marriages in the state of Texas, so is a divorce appropriate? I also wish to file for full custody of the children since he abandoned us, and I do not think he was ever planning to return home. Is legally getting a divorce the right way to handle these matters? Any help would be greatly appreciated.
2 Answers from Attorneys
Re: common law marriages
Given the facts that you have stated, you were married, and a divorce is appropriate. By the way, you do not have to live together for 7 years to be common law married. The divorce will divide up debts and property, and also provide for the custody and support of the children. You can request child support from him. Common law marriages often end up with messy confusion in the courts over retirement plans, life insurance, and probate issues. You want to be sure that his future debts don't get charged against you. And further, if he is still married to you, it is illegal for either you or him to marry someone else (bigamy) until the two of you first get divorced or legally dissolve the marriage. There are other ways to accomplish this, but a divorce is the clearest and most efficient way to handle all these issues.
Re: common law marriages
Probably the most common family law "myth" is that a common law marriage takes seven years. In actuality, you can have one after just one night. The three elements of a common law marriage are 1) the parties agree to be married, 2) they cohabiltate after that agreement, and 3) they represent to others that they are married. Texas law refers to that as a "marriage without formalities". While there is a process for registering such an informal marriage, that is not required.
Given the length of time that you met all three requirements, I would suggest that you get divorced. If you don't then one of you might find yourself liable for the debts of the other or one of you might commit bigamy.
Remember that all income (including retirement accounts) that either of you receive while married is community property.
You do not need to file for divorce in order to get a custody order for the children, but it would be less expensive to do it all at once.
Good luck.
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