If your ex says you were common-law married, you disprove it in Texas by showing that at least one required piece is missing. Under Texas Family Code Section 2.401, an informal marriage needs three things: an agreement to be married, living together in Texas as a married couple, and telling other people you were married. The person claiming the marriage has to prove all three. If they can’t prove even one, there’s no marriage to divorce.
Timing can help you too. If your ex waited more than two years after you split up and moved apart, the law presumes you never agreed to be married. This post is for the person on the receiving end of that claim. If you want to know how a common law marriage is created in the first place, start with our guide to the three elements of common-law marriage in Texas.
What your ex has to prove under Texas law
Texas recognizes common law marriage, which the Texas Family Code calls an informal marriage. It’s just as binding as a marriage with a license and a ceremony. That’s why the claim matters. If it sticks, you’d need a full divorce, with property division and possibly spousal maintenance on the table.
Under Section 2.401(a)(2), a common law marriage exists only if a couple “agreed to be married and after the agreement they lived together in this state” as spouses “and there represented to others that they were married.” The agreement comes first. The shared home and the holding out come after it, and both have to happen in Texas. Disproving any one of the three elements defeats the claim.
So you don’t have to disprove everything. You have to show the judge, or a jury, that one piece is missing or can’t be proved. In most contested cases, the agreement is where the real disagreement lies.
Showing there was never an agreement to be married
The agreement is usually the hardest element for the other side to prove. Texas courts look for a present agreement, meaning you both intended to be married right then. A plan to marry someday is not an agreement to be married now. Being engaged, shopping for rings or talking about a wedding “once we save up” all point to a future marriage, not a current one.
Here’s the tricky part. Courts can infer an agreement from circumstantial evidence, including how you lived and what you told people. Your ex doesn’t need a recording of you saying “let’s be married.” They’ll try to build the agreement out of shared bills, a joint account or holiday cards signed as a family.
Your answer is context. Couples share a lease or an account for plenty of reasons that have nothing to do with marriage. If you treated the relationship as dating or engaged, and your words and paperwork match, the inference gets much weaker. Think ahead about the moments your ex will point to: a text calling them “wifey,” a hotel check-in as “Mr. and Mrs.,” a joke at a party. None of these is fatal on its own, but each one needs an honest, consistent explanation.
Living together is not the same as living together as spouses
The second element is cohabitation, and the statute is specific. You must live together “in this state” as a married couple after agreeing to be married. Staying over most nights while keeping your own place is different from sharing one home. So is splitting rent as roommates.
Look at where each of you actually lived during the period your ex claims. Separate leases, different addresses on your driver’s licenses and utility bills in one name all suggest you didn’t share a marital home. Check the geography, too. If the only home you shared was in another state, the Texas requirement isn’t met, though another state’s law could come into play there.
Dates matter as well. If you moved in together long before any supposed agreement, or moved out before it, the timeline may not line up the way your ex needs it to.
What people heard you call each other
The third element is often called “holding out.” It means you both represented to others that you were married. Courts look for a consistent pattern, not one slip of the tongue. Calling someone “my wife” once at a barbecue is weak evidence. Introducing each other as spouses for years to family, coworkers and neighbors is strong evidence.
Ask yourself who your ex will call as witnesses, and who you can call. Your sister knows you always said “girlfriend.” Your coworkers never heard about a spouse. Your employer’s records show nobody else on your health plan. Those people and records show how your community understood the relationship, which is what this element is really about.
Social media cuts both ways. Posts about “my boyfriend” or a profile listing you as single can help you. An anniversary post to “my husband” is the kind of thing the other side will print and hand to the judge.
How the two-year presumption works in your favor
If someone waits more than two years after a couple separates and stops living together to file a case claiming a Texas common law marriage, Family Code Section 2.401(b) presumes there was no agreement to be married. The presumption is rebuttable, so it’s a head start, not a sure win. Your ex can still try to overcome it with evidence.
Expect a dispute over the separation date, because the two-year clock runs from the day you separated and stopped living together. Say you moved out in March 2023 and your ex filed in May 2025. You’d argue the presumption applies. Your ex may claim you were still under one roof into late 2023. Moving records, a new lease and texts about the move are how you pin that date down.
If your ex filed within two years, there’s no presumption either way. The case simply turns on the evidence for each element.
Evidence that rebuts a common law marriage claim
The most useful evidence is usually the paperwork you created while the relationship was happening, before anyone was thinking about court. Records made at the time tend to carry more weight than memories offered later. The Texas State Law Library notes that leases, tax returns and insurance policies are the kinds of documents used to prove a common law marriage. The same records can show there wasn’t one.
Start gathering these:
- Tax returns filed as single or head of household for the years in question
- Leases, mortgages and deeds in one name, or listing you as unmarried
- Health insurance and employer benefits forms with no spouse enrolled
- Loan, credit card and apartment applications that list your marital status
- Driver’s licenses, voter registrations and mail showing separate addresses
- Texts, emails and posts describing the relationship as dating or engaged
- Names of people who can say how the two of you introduced each other
Be ready for this, though. Documents can cut against you as easily as they help. At least one Texas appeals court has sent an informal marriage dispute back for trial even though one side had years of tax returns and IDs showing separate addresses, because cards, photos and friends told a different story. Judges weigh everything together.
In our experience with contested family cases in Travis County, Hays County, Bastrop County and Comal County, these disputes usually come down to whether the paper trail and the witnesses tell the same story. Be especially careful with anything signed under oath, whether it said you were married or single.
Facts that rule out an informal marriage on their own
Some facts end a Texas common law marriage claim without weighing anyone’s credibility. Under Section 2.401(c), a person under 18 can’t be a party to an informal marriage. Under Section 2.401(d), a person who is still married to someone else can’t enter one.
If either of you was still legally married to another person during the period your ex claims, that period can’t create a Texas informal marriage. A dated divorce decree from a prior marriage can be powerful evidence.
One more check: did you ever sign a Declaration and Registration of Informal Marriage at a county clerk’s office? Under Section 2.402, that form includes a sworn statement that you agreed to be married and lived together as spouses. If you signed one, your ex can prove the marriage with the declaration itself, and the two-year presumption doesn’t apply. That’s a very different kind of case.
What to do after you’re served with a divorce petition
Often the first sign of the claim is a divorce petition that says you were informally married. Don’t ignore it. The citation served with the petition states your deadline to file an answer. Under Family Code Section 6.701, a divorce petition “may not be taken as confessed” if you don’t answer, so your ex still has to present evidence. But a judge hearing only one side of the story is not where you want to be.
Practical first steps:
- Note the answer deadline from the citation and talk with a lawyer before it passes.
- Pull your tax returns, leases and benefits records for the whole period your ex claims.
- Write a timeline of when you met, moved in, moved out and how you introduced each other.
- Stop posting about the relationship, and don’t delete anything. Deleted posts can look worse than the posts themselves.
A family lawyer can deny the marriage in your answer and ask the court to decide that question before any property is divided. Our Texas divorce lawyers handle contested informal marriage claims as part of our divorce practice, from the first answer through trial when a case needs one.
What a marriage finding means for property and child custody
If a Texas judge finds a common law marriage existed, the case goes forward as a regular divorce. Property either of you acquired during the marriage is presumed to be community property and is divided in a way the court considers just and right.
Our post on how Texas divides community property in a divorce explains what that looks like. Debts and spousal maintenance can come into play too.
If the court finds there was no marriage, there’s nothing to divorce. Property generally stays with whoever owns it under the deed, title or account, though co-owned assets may still need sorting out. Winning on the marriage question doesn’t settle anything about your children. Custody, possession and child support follow their own rules whether or not you were ever married. If that’s part of your situation, our paternity attorneys can explain how parentage is established without a marriage.
Talking it through with our attorneys
Being told you were married when you never believed it is unsettling. The stakes are real, but Texas law gives you specific places to push back: the agreement, the shared home, the holding out, the two-year clock and the hard limits in Sections 2.401(c) and (d). Managing attorney Tyler Key has practiced family law for about 12 years and has served as a Guardian ad Litem and Amicus Attorney. Our nine attorneys appear in family courts across Central Texas.
This article is general information, not legal advice for your situation. If you’d like to talk through what your ex is claiming, our divorce attorneys in Austin, Buda, Bastrop, New Braunfels and Victoria can review your records with you. Call (512) 400-2350 to schedule a consultation.
Frequently asked questions
How do I get out of a common-law marriage in Texas?
If you were informally married, you need a divorce like any other married couple, because Texas has no separate “common-law divorce.” If you don’t believe you were married, you answer your ex’s petition by denying the marriage and showing that at least one of the three elements in Family Code Section 2.401 is missing.
How do you protect yourself from a common-law marriage claim in Texas?
Keep your words and paperwork consistent with how you see the relationship. File taxes accurately, don’t list a partner as a spouse on forms, introduce each other as partners, and don’t sign a declaration of informal marriage unless you mean it. Some couples also sign a written cohabitation agreement stating they haven’t agreed to be married.
Can my girlfriend or boyfriend take my house if we break up?
If there was no marriage, your partner generally has no community property claim to a house titled only in your name. If a court finds an informal marriage, a home bought during it is presumed to be community property. Other claims can still arise if you’re both on the deed or the loan.
Does living together for seven years make you common-law married in Texas?
No. Texas has no minimum time requirement, so seven years together doesn’t create a marriage on its own, and a few months could if all three elements are met. What counts is the agreement to be married, living together in Texas as spouses and telling others you were married.
Does the two-year rule mean my ex can’t claim we were married?
Not exactly. If your ex files more than two years after you separated and stopped living together, Section 2.401(b) presumes there was no agreement to be married. Your ex can still try to rebut that presumption with evidence, so it’s a strong advantage, not an automatic win.