How to File for Common Law Divorce in Texas

by Beverly Bird
You have to first qualify for a common law marriage before getting a divorce from it.

You have to first qualify for a common law marriage before getting a divorce from it.

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Texas is one of only a few states that recognize common law marriage, a union entered into without a ceremony or license. However, if you have children, property or debt together, those issues are no less real because you didn’t take out a marriage license. Therefore, Texas gives you the option of getting a “regular” divorce to address these issues. The process is the same as if you were formally married.

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Step 1

Ascertain if you really do have a common law marriage, called an “informal marriage” in Texas. Section 2.401 of the Texas State Code lists the legal criteria. You and your spouse must have agreed to marry, lived together as husband and wife, and told others you were married. In the alternative, you might have registered your union as an informal marriage with your county clerk.

Step 2

Download a petition for divorce from the Internet. Many Texas counties have websites that include free legal forms, including petitions. Legal websites also offer them, sometimes for a fee. Texas has two petitions, one for use if you have children and the other for use if you do not.

Step 3

Complete the appropriate petition, telling the court about your children, property and debts. In paragraph 3, where the form asks for the date of your marriage, enter the date when you began living together as husband and wife and note that yours is an informal marriage.

Step 4

Take your completed petition to the district court in the county where you have lived for three months, or where your spouse has lived for three months. File it with the court clerk and ask for a citation. This is a one-page document that tells your spouse you’ve filed for divorce and how long he has by law to respond to your petition. If the clerk in your county does not have a citation form available, you can usually access one on the Internet through the same website where you got your petition.

Step 5

Serve your spouse with the citation and a copy of your filed petition. You can hire a private process server to deliver it to him, or you can use the sheriff or constable in your county. If you use a private process server, he will return an affidavit of service to you, which you'll also have to file with the court.