If I was common law married previously and took my husband’s last name at a company I was employed at. do I need to get a legal divorce?

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If I was common law married previously and took my husband’s last name at a company I was employed at. do I need to get a legal divorce?

I was common law married for 2 years. Although we did not have and children or property together and we did not file taxes together I did go by his last name at a company I was working for. We have now been separated for 12 years and noth remarried. We did not get a legal divorce. Are our current marriages legal or void?

Asked on June 18, 2012 under Family Law, Texas

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Your currents marriages aren't outright "void," but they are voidable if one or the other spouse decides to file for divorce, thereby impacting the subsequent divorce.  Texas does recognize common law marriages.  However, the legislature has put a type of statute of limitations on divorces for common law marriages.  A divorce action or some formal process to declare the marriage valid needs to be filed within two years after the parties to the common law marriage separate.  This statute creates a "presumption" that the parties never really intended to be married.  This means that if you decided to divorce your current spouse, he could raise the issue that you two were nevery legally married, have your current marriage declared void, and kick the divorce action.  However, you would be able to rebut this allegation by showing that neither you or your former spouse did anything for two plus years-- so ya'll obviously didn't intend to be marriage.  Once you earn this presumption, he could present evidence to disprove your defense.  The presumption is not permanent.  If he proves that you were and did intend to be married, then he can have your divorce declared void.  However, until your spouse goes through these steps, then your marriage is still valid, but could potentially be declared void. 


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