Marriage, Separation, and Divorce in the State of Texas

Divorce attorney explaining marriage, divorce, and separation in Texas

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Marriage is a contract that legally binds a couple together, divorce is the dissolution of that contract, and – while the State of Texas does not grant legal separations – married couples do sometimes separate from one another and take legal steps as a result.

Better understanding the ins and outs of marriage, separation, and divorce in Texas can help you better understand your own situation and help you make the right decisions for you as you proceed.

If you are facing a divorce or are considering separating from your spouse, do not wait to discuss your unique case with an experienced Killeen divorce attorney.

Marriage in Texas

Before divorce or separation can become a concern, a marriage or a common-law marriage must occur.

Texas Marriages

The following basics apply to Texas marriages:

  • The couple applies for a marriage license at the county clerk’s office and must wait at least 72 hours before a judge or authorized official can marry them. In order to have a ceremonial marriage, a marriage license is required.

  • Each person must fill out a sworn application that verifies their eligibility to marry. Anyone under the age of 18 requires a court order that is supported by at least one parent’s permission.

  • Eligibility requirements other than age include that the individuals cannot be married currently, cannot marry someone who is a first cousin or closer by blood, and cannot marry a former or current stepparent or stepchild.

  • The marriage ceremony itself must occur within 31 days of license issuance.

  • The person who performs the marriage ceremony can be a judge, justice of the peace, priest, rabbi, minister, pastor, or anyone else in an authorized office of another religious organization.

  • Finally, it is not legal to refuse to perform a marriage between two people who are eligible to marry in the State of Texas based on their race, national origin, religion, or sexual orientation.

Texas Common-Law Marriages

Common-law marriages are legally binding, but they come without the formalities and ceremony that attend traditional marriages. Specific requirements must be met before a relationship can be categorized as a common-law marriage.

Many people believe – once they have lived together for a certain amount of time or have had a child together – that they are involved in a common-law marriage, but this is not how it works.

To be considered as having a common-law marriage, the couple in question must meet the following requirements:

  • Both parties must be at least 18 years old.

  • The couple must have lived together in Texas as a married couple.

  • The couple must have represented themselves to others as a married couple.

Once a common-law marriage is established, it is no less official than a traditional marriage.

Considerations Regarding Common-Law Marriages

There are some important points to keep in mind regarding common-law marriages:

  • The couple can formalize their common-law marriage by filing a Declaration and Registration of Informal Marriage.

  • Common-law divorces are not a legal reality. If couples want to dissolve a common-law marriage, they must seek a divorce – just like any other married couple. Failure to do so leaves the individuals legally responsible for the other’s health considerations and finances and bars them from remarrying.

  • A common-law marriage in Texas will not necessarily be considered a common-law marriage in another state.

  • Common-law marriage in Texas applies to anyone who can legally marry, including same-sex couples.

Proving Your Common-Law Marriage

Proving that you are in a common-law marriage comes down to demonstrating that you considered yourselves married and that you held yourselves out as married to the community at large. Common examples of how this can be achieved include the following actions:

  • You directly told other people that you were married to one another.

  • One of you used the other’s last name as your own.

  • You made large purchases together.

  • You signed leases, loan applications, or other legal agreements as a married couple.

  • You filed your tax returns as a married couple, or you filed singly but as married people.

  • One of you included the other on your work-sponsored health insurance.

  • You applied together for public benefits and listed yourselves as spouses.

  • You were beneficiaries on one another’s life insurance policies.

  • You have children together.

Agreeing to be married to one another and presenting yourself as a married couple to others is generally established through multiple occurrences rather than one specific event.

Texas Does Not Recognize Legal Separation

The State of Texas does not issue or recognize legal separations. If you are a married person living in Texas – whether you have a traditional marriage or a common-law marriage – you remain married until you obtain a divorce. This fact can have considerable ramifications in your future and will impact you in all of the following ways:

  • Any assets either of you acquires while you are separated remain marital property, which means they are owned by both of you.

  • Any debts that either of you acquires while you are separated are considered marital, which means you can both be held responsible.

While Texas does not have legal separations, it can issue temporary orders while a divorce is pending, including orders related to the following terms:

  • Child custody arrangements

  • Child support

  • Use of property

  • Legal costs

The fact remains, however, that some couples choose not to divorce for personal reasons but, nevertheless, live completely separately from one another. In these instances, couples can obtain orders from the court that, when compiled, work much like a legal separation in another state would, including all of the following legal arrangements:

  • Temporary orders

  • Suits affecting the parent-child relationship

  • Separation agreements

In terms of financial responsibility, as discussed above, the parties remain connected until they are divorced.

Divorce in Texas

A divorce in Texas is a legal dissolution of the marriage contract. No two divorces ever duplicate one another exactly, but they all address the same divorce terms – as applicable.

Child Custody Arrangements

In Texas, child custody includes two prongs: legal and physical custody.

Legal Custody

Parents are responsible for making major decisions on behalf of their children’s overall well-being, and upon divorce or separation, this responsibility is addressed by legal custody. Legal custody involves all of the following decisions:

  • Making decisions about where your children make their primary home

  • Making decisions about your children’s healthcare

  • Making decisions about your children’s schooling

  • Making decisions about your children’s extracurricular activities and travel

  • Making decisions about your children’s religious education

Parents can make these decisions jointly, but other options include the following arrangements:

  • One parent having the authority to break a tie when a consensus is out of the question

  • Dividing the decisions between parents based on category

  • One parent having sole legal custody and making all the primary parenting decisions on his or her own

Physical Custody

Physical custody determines the parenting time schedule by which both parents divide their time with their children. Parenting time schedules can vary considerably, but they are all categorized in one of the following two ways:

  • One parent is designated as the primary custodial parent, while the other has a visitation schedule with the children.

  • Both parents divide their parenting time more evenly.

Texas courts find it in the best interests of the involved children to maximize the time they can spend with each parent. Parenting time is only denied or limited when there is a significant reason for doing so.

A parental responsibility that accompanies parenting time is making those everyday decisions that are not covered by legal custody on behalf of the children.

Child Support

When parents are no longer together, they are no less responsible for supporting their children financially, and child support is the tool the state uses to ensure that this financial responsibility is shouldered by both parents – in accordance with their financial ability to pay. An array of factors go into the child support calculation process:

  • Each child’s age, overall health, well-being, and needs, including any special needs

  • The number of overnights each parent has with the children

  • Each parent’s earnings

  • The cost of the children’s childcare

  • Any alimony that is paid or received by either parent

  • The amount either parent pays for the children’s health insurance and medical costs not covered by insurance

  • The cost of travel in relation to the parenting plan

Even if one parent is voluntarily underemployed or unemployed, Texas courts can impute income according to what the parent should be earning. It is important to note that courts do not appreciate financial antics of this kind.

While all the factors above can affect the amount of child support paid, the parent who is the higher earner typically makes the child support payment. This tendency is true even when the parents divide their overnights with the children equally.

The Division of Marital Property

The division of marital property ranks right up there with child custody when it comes to divorce terms that are most likely to become contentious. To better understand the division of marital property, it is important to distinguish between marital and separate assets.

Separate Assets

The property and assets you own prior to marriage and the property and assets your spouse owns prior to marriage are considered separate assets in the State of Texas, which means they are not included in the division of marital property.

However, it is important to note that the classification as separate only holds if the asset in question is kept separate throughout the marriage, which is not guaranteed. Any of the following situations can erode the line between separate and marital property:

  • Using marital funds to maintain or fix up the asset

  • Using marital funds to increase the value of the asset

  • Allowing household financing and financing related to the asset in question to become intermingled

  • Failing to keep separate assets strictly separate

Additionally, any increase in the separate asset’s value will be considered marital and will need to be addressed in the division of marital property. Examples include retirement accounts, financial tools, and the value of a real estate property or a business.

Finally, if the property in question is a business and the separate owner runs it without receiving fair financial compensation, which would be a marital asset, it can directly affect the separate status of the business.

Marital Assets

Anything that you, your spouse, or both of you together acquire while you are a married couple is considered marital, and it must be divided between you fairly if your marriage ends in divorce. In this legal context, fairly does not necessarily mean equally – but instead means fairly in the eyes of the law when relevant factors are taken into consideration.


In Texas, alimony is termed spousal maintenance, and it is reserved for those divorces that include both the following elements:

  • One spouse is left without the resources to continue supporting themself financially.

  • The other spouse has the financial ability to provide support.

The amount and duration of alimony hinge on factors like the length of the marriage, each spouse’s earning potential, the contributions the spouse requesting maintenance made to the other’s earning power and to the marriage in general, and the amount of time needed for the recipient to gain the experience or education necessary to become more financially stable.

Look to an Experienced Killeen Divorce Attorney for the Help You Need

Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Killeen, Texas – is a practiced divorce attorney with an imposing record of successfully handling complex divorces like yours. Your case is important, and Mr. Pritchard has the legal insight and skill to help – so please do not wait to contact us online or call us at (254) 781-4222 for more information today.

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