Does Texas recognize common-law marriage?

Yes. Texas calls it an informal marriage. Under Texas Family Code section 2.401, it exists when two people agree to be married, live together in Texas as a married couple, and tell others they are married, all at the same time. A couple can also file a declaration of informal marriage with the county clerk.

Do you need a divorce to end a common-law marriage in Texas?

Yes. Once an informal marriage exists in Texas, it ends the same way a ceremonial marriage does, through a divorce in court. Simply moving out or splitting up does not end it, and the house and other community property are divided in that divorce.

Is the house community property in a Texas common-law marriage?

A house bought after the informal marriage began is presumed to be community property, the same as in any Texas marriage, even if only one name is on the deed. A house one person owned before the marriage started is generally that person's separate property, so the start date of the marriage matters a great deal.

What is the two-year rule for common-law marriage in Texas?

If no court case to prove the informal marriage is filed within two years after the couple separates and stops living together, Texas law presumes there was no marriage. That presumption can be rebutted with evidence, but it makes the case harder, so talk to a family law attorney early.

What if we were never legally married but own a house together in Texas?

Then there is no divorce and no community property split. The house belongs to whoever is on the title, in the shares the deed shows. If co-owners cannot agree to sell or buy each other out, either one can ask a Texas court to partition the property, which usually means a court-ordered sale.

Divorce

What Happens to the House in a Common-Law Divorce in Texas?

November 1, 2026

A woman holding a set of house keys in a sunlit front doorway

If Texas recognizes your common-law marriage, the house is handled exactly like it would be in any other Texas divorce: a home bought during the marriage is presumed to be community property, and the court divides it in a way it considers just and right. If there was no legal marriage, there is no divorce at all, and the house simply belongs to whoever is on the title. So the first question is not “who gets the house.” It is “were we actually married in the eyes of Texas law?”

That question surprises a lot of people. We hear it most from couples who lived together for years, bought a home, and never had a wedding.

What Texas Means by an Informal Marriage

Texas does not use the phrase common-law marriage in its statutes. It calls it an informal marriage, and Texas Family Code section 2.401 sets out how one is created. You can get there two ways.

You signed and filed a declaration of informal marriage with the county clerk. That paper settles the question and gives the marriage a date.
You meet all three requirements at the same time: you agreed to be married, you lived together in Texas as a married couple, and you told other people you were married.

The third piece trips people up. Living together for ten years is not a marriage by itself. Neither is a joint mortgage. What matters is whether you both agreed you were married and presented yourselves that way, on tax returns, insurance forms, a lease, or just in how you introduced each other. Courts look at that kind of evidence when the two people remember it differently.

If You Were Married, the House Follows Divorce Rules

Once an informal marriage is proven, Texas treats it the same as a ceremonial one. You need a divorce to end it, and moving out does not count. Everything that applies in any other Texas divorce applies here, including how home equity gets divided.

Two details matter more in a common-law case than in a typical one.

The start date. A house bought after the marriage began is presumed community property, even if only one name is on the deed. A house one person bought before the marriage began is generally separate property. With a wedding, the date is on a certificate. Without one, the date can become the whole fight, because moving it a year earlier or later can change who owns the house. Our piece on a house owned before marriage walks through how separate property works once that date is set.

The two-year clock. Under section 2.401(b), if nobody files a case to prove the marriage within two years after you separate and stop living together, the law presumes you were never married. That presumption can be overcome with evidence, but it puts the burden on the person claiming the marriage. If you believe you were married and you have moved out, do not sit on it.

If You Were Not Married, the Deed Decides

If there was no informal marriage, there is no community property and no divorce court dividing anything. The house belongs to the people on the title, in the shares the deed gives them. If both names are on it, you each own your share. If only one name is on it, the other person may have little claim to the house itself, though an attorney may see other claims depending on who paid for what.

When two co-owners cannot agree, either one can ask a Texas court to partition the property, which usually ends in a court-ordered sale. We explain that process in our article on forcing the sale of co-owned property in Texas. It is slower and more expensive than agreeing to sell, which is why most co-owners end up negotiating.

What We Would Do First

Here is what I would do if this were my house:

Call a Texas family law attorney before anything else. Whether a marriage existed is a legal question, and the answer drives every step after it.
Pull the deed and the mortgage paperwork so you know exactly whose names are on each.
Gather the paper trail: tax returns, insurance policies, leases, anything that shows how you described the relationship and when.
Get a current value on the home from someone with no stake in the outcome.

That last step is where we come in. Vicky is a Pricing Strategy Advisor (PSA), and when a relationship ends, we work from a neutral position, giving both people the same numbers at the same time. The Move Live Love TX Team™ is a husband-and-wife real estate team with CB&A, Realtors, serving Houston and the surrounding areas. For the bigger picture, our Divorce Guide covers what comes next once you know where the house stands.

This article is general information, not legal advice. A Texas family law attorney can tell you how the law applies to your facts.

Frequently Asked Questions

Does Texas recognize common-law marriage?: Yes. Texas calls it an informal marriage. Under Texas Family Code section 2.401, it exists when two people agree to be married, live together in Texas as a married couple, and tell others they are married, all at the same time. A couple can also file a declaration of informal marriage with the county clerk.
Do you need a divorce to end a common-law marriage in Texas?: Yes. Once an informal marriage exists in Texas, it ends the same way a ceremonial marriage does, through a divorce in court. Simply moving out or splitting up does not end it, and the house and other community property are divided in that divorce.
Is the house community property in a Texas common-law marriage?: A house bought after the informal marriage began is presumed to be community property, the same as in any Texas marriage, even if only one name is on the deed. A house one person owned before the marriage started is generally that person's separate property, so the start date of the marriage matters a great deal.
What is the two-year rule for common-law marriage in Texas?: If no court case to prove the informal marriage is filed within two years after the couple separates and stops living together, Texas law presumes there was no marriage. That presumption can be rebutted with evidence, but it makes the case harder, so talk to a family law attorney early.
What if we were never legally married but own a house together in Texas?: Then there is no divorce and no community property split. The house belongs to whoever is on the title, in the shares the deed shows. If co-owners cannot agree to sell or buy each other out, either one can ask a Texas court to partition the property, which usually means a court-ordered sale.