Marriage and Divorce in Texas

In the state of Texas and in nine other states (Alabama, Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, and Utah; add to this the District of Columbia), two kinds of marriage are recognized: formal and informal. (Except in New Hampshire, where common-law marriage is recognized only through death for probate purposes, all remaining 33 states no longer allow two individuals to contract marriage through common law; these same 33 states, however, recognize common-law marriage contracted by couples in states that still allow it).

A church marriage or a marriage that is presided by a Justice of the peace is what constitutes a formal marriage. An informal marriage, also known as “sui juris marriage” or, more familiarly, “common-law marriage,” is a framework wherein two individuals are legally considered married despite the absence of a formal religious service or despite not having formally registered their marriage in a religious or state registry. For their marriage to be recognized as legal, it simply requires that they: (i) agree to be married or that they consider their togetherness as a valid marriage; (ii) present themselves to others as married; and, (iii) act as they are married.

While entering into marriage in Texas may be easy, as suggested by the state’s recognition of the common-law marriage, ending it is not. As there is no such thing as “common-law divorce,” couples who want to terminate their marriage will have to file a petition for divorce or dissolution of marriage in a Texas court.

Texas recognizes two ways through which a marital union may be terminated: “no-fault” divorce and “fault” divorce. In “no-fault” divorce, a spouse petitioning for divorce simply has to tell the court that he/she and his/her spouse has differences that make their marriage unsupportable or beyond fixing. As explained by an Austin divorce lawyer, insupportability means discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation. Under Texas law, divorce may be allowed on grounds of insupportability alone, without having the need to cite any other reason.

In “fault” divorce, however, a spouse filing a petition for divorce is required to cite acceptable grounds (which he/she will also have to prove in court) because of which the divorce is being sought. Acceptable grounds of divorce include: adultery; cruelty; conviction of felony with the convicted party having been imprisoned for at least one year; abandonment for at least one year; the spouses having lived apart for three years; confinement in a mental institution for three years with the mental disorder having little or no hope of recovery. While there are spouses who file for “fault” divorce in the hope of being awarded a greater share of community properties (properties and assets), others rather file on “no fault” grounds due to the possibility that a “fault” divorce may take months or a year to settle, resulting to higher court and other legal fees.


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