Common Law Marriage in Texas: Understanding Your Rights and Options
Written by attorney Travis Thompson
There comes a time in many dating relationships when the partners make a decision to begin living together. This is known as cohabitation, and may include such additional decisions as where to live and how the living expenses are to be shared.
Over time, this arrangement could possibly evolve into a marriage – even in the absence of a traditional wedding or formal ceremony. This type of marriage is called a common law marriage (also known as an “informal marriage”) and is a legally binding union that can have significant implications for both of the partners on issues related to property rights, financial obligations, children, and probate or divorce.
At Law Thompson, P.C., our experienced Houston family law attorney is dedicated to helping individuals and couples navigate the complexities of common law marriage and providing guidance on how to protect their rights and interests.
What is a Common Law Marriage?
A common law marriage is a type of marriage that is recognized in Texas, where a couple can be considered married without ever having obtained a marriage license or undertaken a formal marriage ceremony.
To be considered a common law marriage in Texas, the couple must meet certain requirements, of which the following three are essential:
- Living together in Texas;
- Agreeing that they are married; and
- Representing themselves to others as a married couple.
Living Together – This requirement contemplates that the couple will be sharing the same household, and in a manner that is more intimate than as mere roommates. It is not a requirement that both of them of them be the owners or renters of the home or apartment or other dwelling. What counts is that they are living together in the same household, regardless of whose name is on the deed or lease.
Agreeing That They are Married – This requirement contemplates that both of them presently consider themselves as being married to one another, and to no others. Hence, if either one of them is already married to another, there can be no “common law marriage.” Likewise, if their plan is to get formally married at some future date, there is no existing “common law marriage” between them.
Representing Themselves to Others as a Married Couple – This requirement contemplates that the couple do the sort of things and engage in the type of conduct and activity that is common and typical of married couples. For example, this could include such activities as introducing themselves or referring to themselves in the presence of others as spouses; filing joint federal income tax returns; identifying
themselves as spouses on other legal documents (such as insurance policies and contracts), etc.
A Myth and a Warning about Common Law Marriage
Like many other areas of the law, there is much myth and misunderstanding surrounding the concept of the common law marriage. For instance, not every cohabitation arrangement rises to the level of a common law marriage. Merely living together – even for many months or years – is not proof of a
common law marriage. Nor is there any specific or minimal amount of time the couple must
live together in order to be common law married.
The existence (or non-existence) of a common law marriage most often arises in one of two situations:
- One of the partners dies; or
- One or both partners decide to end the relationship, and a decision must be made on whether to merely “spit up” or file for divorce.
Here is the warning: Under Texas law, many of the legal rights and obligations of a married couple are very different from those of an unmarried couple. Simply put, when an intimate adult relationship ends due to death of one of the partners or due to a decision to end the relationship, the ultimate consequence or outcome for you is going to depend in great part on whether or not the relationship is a marriage. And if it is a common law marriage, then it is entitled to the same dignity and recognition as a formal, ceremonial
marriage.
There is Common Law Marriage, but not Common Law Divorce.
Although common law marriage is recognizable in Texas, there is no similar legal recognition of common law divorce. Ending a common law marriage in Texas is similar to ending a formal marriage. Spouses in Texas who wish to end the common law marriage are expected to do so by filing for divorce. The process of divorce for a common law marriage is the same as that for a formal, ceremonial marriage. That means the couple, or the court, in the divorce will need to address issues such as property division, financial obligations and possibly spousal support. If there are children of the marriage, then provisions for the
parent-child relationship, including custody and child support, will also need to be addressed.
It’s essential to note that if court proceedings are not filed within two years of the separation,
Texas law presumes that a common law marriage never existed, unless it is proven otherwise.
Some Frequently Asked Questions About Common Law Marriage In Texas
Q: How do I know if I am in a common law marriage?
A: To determine if you are in a common law marriage, you must meet the requirements
outlined above. If you are unsure, it’s best to consult with an experienced family law attorney.
Q: Do I need to file a declaration of informal marriage to prove my common law
marriage?
A: While filing a declaration of informal marriage can help prove your common law marriage,
it is not required. Other documents, such as joint bank accounts, tax returns, and insurance
policies, may also be used to prove your marriage.
Q: Can same-sex couples enter into a common law marriage in Texas?
A: Yes, same-sex couples can enter into a common law marriage in Texas, and their marriage
will be recognized by the state.
Q: How do I end a common law marriage in Texas?
A: To end a common law marriage in Texas, you must file for divorce, just like you would in a
formal marriage, all as stated above. Talk to an attorney to learn about your specific legal
options.
Why Choose Law Thompson, P.C.?
At Law Thompson, P.C., our experienced family law attorney has a deep understanding of the
complexities of common law marriage and is dedicated to providing personalized guidance and representation to individuals and couples in Houston. Our family law attorney also has the experience and skill set necessary to defend clients against unfounded or unreasonable allegations of common law marriage.
We can help you navigate the process of establishing or ending a common law marriage – or
challenging the existence of an alleged and doubtful common law marriage – all designed to
ensure that your rights and interests are protected. Contact us today to schedule a consultation and learn more about how we can help you.