Even though not legally married would I have to file to a divorce

UPDATED: Jul 20, 2019

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Even though not legally married would I have to file to a divorce

Been with someone for 10 years and the
relationship isnt safe we have 2 kids
but I don’t have his last name

Asked on July 20, 2019 under Family Law, Texas


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

You'd only have to divorce if your relationship met the criteria to be considered "common law marriage"--that is, to be an official marriage despite not formally getting married. Texas is one of the minority of states that have common law marraige--in many states (like my own NJ), there is no common law marriage, so this would not be an issue.
In TX, to be common law married, you and he must have meet all the following criteria:
1) the two of you must agreed between you to be married;
2) after deciding or agreeing that you wanted to be married, you must have "held yourselves out" to others as being married or husband and wife (e.g. your referred to him as your husband, he called you his wife, etc.); and 
3) you must have lived together.
It seems as if you fulfilled criteria 3), so the question is whether you and he met criteria 1) and 2). If you did, you'd have to get an actual divorce, since you were married without a formal marriage ceremony or marriage license.

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