If you never considered yourself married, then technically you were never common law married. Common law marriage requires an agreement between the parties to be married.
If you have a concern that he may claim you were married (or your new husband may claim this) prior to the new marriage, just see if the ex will agree to sign off on an Agreed Decree of Divorce.
This answer is intended for informational and educational purposes only and should not be considered legal advice nor forming the attorney client relationship. This attorney is licensed in Texas.
For an informal or "common law" marriage to be valid in Texas, the parties must have (1) agreed to be married; (2) after agreeing to be married, cohabited in Texas; and (3) represented to others that they were husband and wife. If any of these three conditions are not met, then there is no marriage, and no divorce is necessary. However, either party may seek to prove the marriage in a "judicial, administrative, or other proceeding" under Family Code Sec. 2.401, and whether these 3 conditions occurred becomes a fact question for the court to decide.
If it has been longer than 2 years since the parties separated, then there is a rebuttable presumption that no common law marriage occurred. So, if you've actually been separated 2 years or longer, and if the two of you agree that you were never married, and neither of you ever represented to others that you were husband and wife, then you might be all right. Still, it's better to be safe than sorry. I would recommend that you talk with a family attorney about the specifics of your situation. You may not need a divorce, but you do need more specific advice than we can offer in this forum.
If neither of you considered yourselves married and you have been split up for more than 2 years, it would require clear and convincing evidence that (a) you had agreed to live together as husband and wife; (b) you cohabited in Texas as husband and wife; and (c) you told your friends, family, co-workers, etc that you were married and you filled out forms together as a married couple. It doesn't sound like it would be possible to prove all three of those elements so I don't think you're in danger of being found to have married the guy.
Filing for divorce and then submitting an agreed order is the cleanest way to make extra certain you are not married. But I don't think I'd do that if I were you. If all you want to do is make sure you're divorced so that you can remarry, based on the facts you've given, I would just go get married.
Did you and he file a joint tax return with the IRS? If you did, then I believe you need a divorce because by doing so, you would have represented to the government that you and he were married. As for the children, filing for child support will likely not be enough. I think you need court orders for conservatorship, i.e., custody and visitation of the children as well.
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