I recently had a question from a potential client regarding common law marriage. Turns out that this individual had separated from her husband in 1995 in New York (not divorced, but separated), the couple reconciled, moved to Texas in 1996 and have been living together since then. Thirteen years later, she decides to move on and wants to know if she has to go through the formalities of a divorce here in Dallas.
First, Texas does not have “legal separation” like other states do. The impact of this is that since this individual was never divorced in their home state, then legally she is still married. Even if she were divorced, and then reconciled in Texas, there is another problem that risen — informal (common law) marriage.
An informal or common law marriage is a marriage between a man and woman who agree to be married, live together as husband and wife, and hold themselves out to others as husband and wife, but who have not obtained a marriage license and participated in a marriage ceremony. All three of these elements must exist at the same time for there to be a valid informal marriage. if a valid informal marriage exists, a formal divorce proceeding is required to dissolve the marriage. Texas does NOT recognize informal divorces.
Bottom line: this individual is likely still married and a divorce proceeding in Dallas County is required to end the marriage. Even if the marriage ended in New York, there is the possibility a common law marriage exists which will also necessitate the need for divorce.