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Common Law marriage & Divorce??

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EADayhoff

Guest
What is the name of your state? Texas

Ok I was stupid last year I filed with my Ex on the IRS Tax Return, and march of last year I had my son with him. We have not been together Since July of 2002, Must I still have to get a divorce since it was common law? I already filed Single on this years income tax return since we were seperated for 6 months. I would like to know some information on this because I am so confused how one has to get a divorce when they have no legal papers saying they where even married. Also incase you need the info on my last years return when we filed joint, I used my last name and not his. Is there a cheaper way of doing this?
 


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Boxcarbill

Guest
EADayhoff said:
What is the name of your state? Texas

Ok I was stupid last year I filed with my Ex on the IRS Tax Return, and march of last year I had my son with him. We have not been together Since July of 2002, Must I still have to get a divorce since it was common law? I already filed Single on this years income tax return since we were seperated for 6 months. I would like to know some information on this because I am so confused how one has to get a divorce when they have no legal papers saying they where even married. Also incase you need the info on my last years return when we filed joint, I used my last name and not his. Is there a cheaper way of doing this?
There is no such thing as a common law divorce. And rather than rewrite on the same subject in less than twenty-four hours, I'm going to cut and post what I wrote last night.

An informal marriage is not established by a time frame but is based upon a three prong test--a co-habitation in the state of Texas, an intent to be married and a holding out as husband and wife. Now, while couples declare "we're informally married," the real test doesn't come until they wish to separate and divide the property. Then the divorce petition must assert that they were informally married in order to divide "community property." But if one of them denies the existence of the marriage (and believe me when I say that this is the time that the one who didn't want to go through a formal marriage asserts that they aren't married) then the informal marriage must be proven before there can be a division of any community property.

Now, because people were waiting years after a separation to claim that they were informally married, thereby creating a nightmare in probate, wrongful death actions, real propety, etc. a powerful movement began to abolish the informal marriage in Texas. The result was a compromise by the Texas legislature. Keep informal marriage but encourage people to assert their informal marriage very quickly after separation or face a presumption that there was never an intent to be informmally married. The result was a statute that if a proceeding in which an informal marriage is to be proved is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married. So no it is not a common law divorce (there is no such thing) but rather create a presumption that there never was a marriage.
 
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EADayhoff

Guest
Ok so does this mean, That I dont have to get a divorce to move on with my life? I mean I have my son, I hold custody of him, and We had nothing together. So if I am reading right, if we had like property or something of that nature then yes, we would have to take the steps of divorce to figure out who gets what correct? I am really asking because all we had together was my son, and thats it, but I hold custody of him, Will I just have to do a custody battle if he feels that he wants to have my son in his custody? because I am with someone now and we were thinking of getting married in the future, but I dont want to run into that common law problem when I go to get married in the future.
 
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Boxcarbill

Guest
EADayhoff said:
What is the name of your state? Texas

Ok I was stupid last year I filed with my Ex on the IRS Tax Return, and march of last year I had my son with him. We have not been together Since July of 2002, Must I still have to get a divorce since it was common law? I already filed Single on this years income tax return since we were seperated for 6 months. I would like to know some information on this because I am so confused how one has to get a divorce when they have no legal papers saying they where even married. Also incase you need the info on my last years return when we filed joint, I used my last name and not his. Is there a cheaper way of doing this?
Although you didn't ask I will go ahead and state that I highly recommend that you file for divorce because a child was born or adopted of the marriage and you are going to have to establish child support, custody and visitation-- now or later. You may as well do it now while you both can easily be located. If you want another good reason for doing it now, it is because since you were married, you both have equal rights to the child because no order has been entered giving either of you a superior right to the child. Take care of business. Right now it is pretty standard stuff. Later it could, and probably will, become a twisted nightmare to unravel.
 
B

Boxcarbill

Guest
EADayhoff said:
Ok so does this mean, That I dont have to get a divorce to move on with my life? I mean I have my son, I hold custody of him, and We had nothing together. So if I am reading right, if we had like property or something of that nature then yes, we would have to take the steps of divorce to figure out who gets what correct? I am really asking because all we had together was my son, and thats it, but I hold custody of him, Will I just have to do a custody battle if he feels that he wants to have my son in his custody? because I am with someone now and we were thinking of getting married in the future, but I dont want to run into that common law problem when I go to get married in the future.
O.K. so you did ask while I was answering. Get the divorce now. Take care of business, legally.
 

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