No such thing as common law divorce in Texas

Once a party establishes the elements of a common law marriage, spouses are married until they are legally divorced under Texas law. The recent case of McMaster v. Small, No. 14-13-00069-CV, 2014 WL 950471 (Tex. App.—Houston [14th Dist.], 2014, no. pet. h.) (03/11/2014) (mem. op.), illustrates this concept case, the wife petitioned for divorce, alleging common law marriage.

Wife alleged that she and Husband married in December 1991 and ceased to live together as husband and wife in August 2004. She provided her own testimony, as well as the testimony of seven witness, that husband and wife "held out" to others that they were married starting in December of 1991. The evidence further showed that, beginning in August of 2004, the parties denied that they were married, so husband argued that the evidence was not sufficient to show "holding out" as a required element of common law marriage.

The Houston 14th Court pointed out that there is no such thing as a common-law divorce in Texas. So, once evidence established that the husband and wife held out to others early on that they were married, the necessary elements of common-law marriage were established, making them legally married in the eyes of Texas law. Common law marriage, like any other marriage, may be terminated only by death or a court decree. Therefore, even if the spouses denied the existence of a marriage after August 2004, those denials cannot undo the marriage.

This case illustrates the required level of proof to show common law marriage. It is enough to show one point in time that meets the elements of common law marriage. It is not necessary to show a continuing pattern of conduct throughout a time period of when the parties were together.

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