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Marriage, Divorce & Separation

Marriage

What is the process of getting married in Texas?

  • To get married in Texas, you must first apply for a license at a county clerk’s office, then typically wait at least 72 hours before being married by a judge or authorized religious official. A ceremonial marriage requires a marriage license issued by the county clerk. You must complete a sworn application that establishes the facts required to show that you are legally eligible to enter into the marital relationship. People younger than 18 years old need court orders. You cannot be currently married. You cannot marry a person with a blood relationship of first cousin or closer. You cannot marry a current or former stepparent or stepchild.
  • The marriage ceremony must be conducted with 31 days of the day the license is issued by the county clerk. The ceremony generally must not be conducted within 72 hours of the issuance of the license. Any judge, justice, justice of the peace, minister, priest, rabbi, or other authorized office of a religious organization may perform the ceremony. It is unlawful to refuse to perform the marriage ceremony between two persons eligible to marry because of race, religion, national origin, or sexual orientation.
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  • Common Law Marriage

    • A common law marriage is a legal marriage without a ceremony, or the other formalities typically associated with a traditional marriage. It is created only if certain specific legal requirements are met. Proving a common law marriage does not depend on how long you have been living together or whether you have children together. Once proven, a common law marriage has no “lesser status” than a formal marriage. It is just as legally valid.

      To have a common law marriage in Texas, the couple must:

      1. Be at least 18 years of age,
      2. Agree to be married,
      3. Live together in Texas as husband and wife, and
      4. Represent to other people that they are married.

    • A couple that wishes to formalize a common law marriage can file a Declaration and Registration of Informal Marriage. To do this, the couple should obtain the form for filing a Declaration of Marriage, sign it, and file it with the County Clerk in the county where the couple lives. Once signed, the declaration is valid proof of marriage and the couple will be considered married for all legal purposes.

    • YES.  There is no such thing as a common law divorce in Texas.  Texas does not recognize common law divorces.  It only recognizes common law marriages.  Separating or living apart in a common law marriage is NOT the same thing as a divorce.  Couples that do not legally end their common law marriage continue to be responsible for one another, each other's finances, health decisions, etc., and they cannot marry other people.

    • It does not depend on one particular fact. The court will look at multiple factors, such as proof that:

      • You lived together,
      • You told others that you were married,
      • You used your partner’s last name,
      • You filed joint tax returns as spouses or as a married person filing singly,
      • You signed leases or other documents as spouses,
      • You made joint purchases,
      • You included your partner on your health insurance,
      • You made your partner the beneficiary of a life insurance policy, made joint loan applications or agreements,
      • You applied for public benefits and listed your partner as “spouse,” or
      • You have children together.

      Introducing your partner as your spouse on a single occasion might not be enough by itself, but it may be coupled with other evidence suggesting that you acted like a married couple and that others thought you were married.

    • Not all states have laws like those in Texas which recognize common law marriage. If you are considering moving to another state, or if you think you may have entered into a common law marriage, you should seek legal counsel from an attorney in the state which you are interested in.

    • Yes. Everything above applies to same-sex couples.

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  • Divorce & Separation

    • No. You cannot get a legal separation instead of a divorce in Texas. Texas law does not recognize legal separations. If you and your spouse are separated but have not gotten a divorce, there can still be financial consequences, because legally you are still married.

      Keep in mind that while a divorce petition is pending, the court can enter Temporary Orders for child support, custody, use of property, payment of attorney’s fees and other issues. A divorce petition can be dismissed later if you and your spouse reconcile.

    • You must file a Petition for Dissolution with the District Clerk's office in the county where you have resided for the past 6 months.  You must have a copy of the Petition served to your spouse.  Your spouse should then file an answer to your request.  Their answer can be as simple as "yes" or "no."  The court will then ask you and your spouse to decide how any assets or debts acquired during the marriage will be divided.  If you cannot agree on the division of items, you can request that the Court decide for you both.  After the assets and debts have been divided, the court will sign an Order of Dissolution and formally end your marriage.  You are eligible to remarry after 30 days.

    • No. Texas adopted a “no fault” divorce statute in 1975 which allows either spouse to request a divorce on the grounds of insupportability. Insupportability is a legal word that means the spouses simply do not wish to remain married; it does not mean that one person has done something wrong or failed at the marriage. The only evidence needed to seek a divorce is a sworn statement by one spouse that they no longer wish to be married.

      Texas does have fault grounds for divorce, such as cruelty or adultery, that can be important for the purposes of custody or receiving a bigger share of the community property, but proving fault is not a legal requirement for getting a divorce.

    • When you file a court case, you must usually pay a court filing fee. There may be other court fees depending on your case. For example, you may need to pay for certified copies or pay to have the other side served with court papers. Court fees vary by county. Contact the district clerk’s office in the county where you plan to file your court papers to learn the fees for your case. You can call or check the website of the County District Clerk's office in the county where you live to get the exact amount of court filing fees. Attorneys fees and mediation cost are additional and depend on the time spent on the case. Attorneys fees can cost each spouse thousands of dollars the longer it takes to come to an agreement.

    • Yes. In Texas, the court will not grant a divorce until 60 days after the date the suit was filed, and the other party has been properly served with the divorce papers, except in cases involving domestic violence. However, most divorces take much longer than 60 days. While the divorce is pending, the court can enter Temporary Orders for child support, custody, use of property, payment of attorney’s fees and other issues.

    • Even if you have a simple, uncontested divorce, it is probably wise to consider hiring a lawyer to answer legal questions and assist in making decisions. In a contested divorce, you probably will need to hire a lawyer.  Disputes regarding child custody and support, spousal maintenance, taxes, and property division will almost certainly arise.  If your spouse has hired a lawyer, you may need a professional to represent you.

      If you decide not to hire a lawyer, see the State Bar of Texas's handbook for representing yourself in Family Court. You can call the AFS office to make a legal consultation appointment for additional guidance for uncontested divorces only. Keep in mind that AFS does not provide court representation.

    • Your divorce is uncontested if it can be finished by agreement or by default.

      • Your divorce can be finished by agreement if you and your spouse agree about all the issues (including custody, visitation, and child support) and are both willing to sign the divorce forms.
      • Your divorce can be finished by default (without your spouse) if your spouse is served and does not file an answer or otherwise appear in court.

      Your divorce is contested if your spouse files an answer or waiver of service and will not sign the Final Decree of Divorce. To finish a contested divorce, you must set your case for final hearing and give your spouse at least 45 days’ notice of the hearing.

    • What types of forms do I need for a divorce?

      • This form notifies the Court and your spouse that you wish to get divorced. The type of petition you file will depend upon whether or not you have minor children or titled land.

      • This is the form that notifies the Court and your spouse that you received a copy of their Original Petition and understand they want to get divorced.  It is not an agreement or a denial.  It is simply an acknowledgement to the Court that you understand your spouse wants a divorce. The type of answer you file will depend upon whether or not you have minor children or titled land.

      • This is the final Order used by the Court to officially divorce you and your spouse.  It can also order that one spouse's name be changed to a "maiden" name or new name.

    • If you file for divorce, your spouse must be served with the initial divorce papers, which include:

      • The citation (get this form at the clerk’s office when you file your case), and
      • A copy of your Original Petition for Divorce, and
      • A copy of any other forms you filed with your Original Petition for Divorce.
      •  

      You must arrange for a constable, sheriff, private process server, or the court clerk to serve the initial divorce papers. You may not be the server.

    • Texas is a community property state. Community property includes almost all property acquired during the marriage, including:

      • Income,
      • Wages,
      • Savings,
      • Bank accounts,
      • Retirement,
      • Vehicles,
      • Land,
      • Houses,
      • Dishes,
      • Furniture,
      • Tools,
      • Electronics, and
      • Some business and partnership assets.

      It does not matter which spouse purchased the property of whose name is on the account or title. In most cases, property purchased or acquired during the marriage is community property.

      On the other hand, separate property is property owned before the marriage or acquired by one spouse during the marriage by gift, inheritance, or, sometimes, as part of a personal injury settlement.

      The law does not require property or debt to be divided equally in a divorce. The court is required to divide the property and debt in a just and right manner. The court can order the sale of property, divide retirement benefits, and decide things such as who gets which vehicle. The court can also order each party to pay certain debts but cannot order a creditor to remove your name from the debt or loan, even if your spouse was ordered to pay it. A divorce will not fix your credit report. Debt includes the balance on car notes, credit cards, personal loans, student loans, hospital bills, regardless of who created the debt.

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