For the majority of married persons in Texas, our married lives began with a ceremony of some sort where vows were exchanged and a pronouncement was made that you and your spouse are now married. It’s a big day is your lives and one that can be shared with friends and family alike. After all- married couples have been the bedrock of our society for thousands of years.
Elements of a Common Law or Informal Marriage
Would it surprise you to learn that there is no need in Texas to go through a ceremony at all in order to be married? This is absolutely true. Taking a look at the Texas Family Code you will find that a marriage begins in Texas when the following three circumstances come to fruition simultaneously:
- two adults consent to be married to one another
- the two adults agree to be married and then live together as a married couple
- the two adults represent to one another that they are married
If you think about it, for the vast majority of us married folks, by going through with a marriage ceremony and then going home to our residence after the wedding we have met all three qualifications for a valid marriage in Texas. That is all it takes.
In the event that you and your partner did not go through with a marriage ceremony but still met the above qualifications you are considered to have entered into an informal or common law marriage.
Texas does not really care if you are common law married to a person or if you are just in a cohabitation type relationship. Until you have children and/or want to end the relationship is when the State becomes interested in how your property will be divided and children cared for after the separation. This all begs the question- does Texas have something like a common law divorce if you are involved in a common law marriage?
Does Texas have a common law divorce?
In short- no.
A court can dissolve a common law marriage and the rules of “regular” divorces apply. A just and right division of your marital estate will commence if you and your common law spouse cannot agree to a method to divide your property up between yourselves. This includes:
- income as well as
- physical property
Exceptions to this rule include items that were:
- gifted solely to you during your marriage or
- items that you gained via an inheritance
If you believe that you are involved in a common law marriage and that therefore you are entitled to a just and right distribution of the marital estate with your spouse, then you have the burden of proof to prove that there is a common law marriage in place.
You must bring a lawsuit to divide the property of your common law marriage within two years of your marriage has ended due to the death of your spouse or a separation of you and your spouse.
Proving a valid common law marriage in Texas
Recall that there are three elements that must be proven right off the bat in any lawsuit in which you are asserting that a valid common law marriage had been in existence.
Resided in Texas
A big issue to keep in mind in today’s world is that you and your spouse must have resided together in Texas. You can’t have lived in Texas at one time and then moved to Louisiana or Mexico to be closer to one of your families. You had to remain in Texas and have all three criteria met simultaneously.
Next, you essentially have to prove that you and your spouse are not related to one another within a certain degree of consanguinity.
Not Married to Anyone Else
Then you will need to show that both of you are not still married to another person.
At Least 18
Supposing then that you are both at least eighteen years old and mentally able to enter into a marriage, these would be the issues you would need to prove to a judge in order to validate a common law marriage in Texas.
Breaking down the three qualifications to be engaged in a valid common law marriage in Texas
As I’m sure you could imagine, there can be grey areas between meeting each of the three initial qualifications for being involved in a valid common law marriage in Texas.
For instance, your agreement with your spouse to be married must not have any contingencies involved- i.e. you must make an unconditional vow to marry one another until death do you part, just as in a traditional marriage ceremony. Taking each out for a “test run” will not due if you intend to prove a valid common law marriage.
So long as you are representing to others that you are married to one another there is no magic time length that you and your spouse must reside together in order to qualify for a valid common law marriage.
It is relatively simple to have a conversation with your partner that you want to commit to one another for life to be married. It’s very likely that you are already living with one another. The tough part is the last issue we discussed- actually holding out to others that you married.
Tomorrow’s blog post from the Law Office of Bryan Fagan will pick up where we left off today- going over just what a court would consider “holding out to others” that you are married to your partner. There are many ways to do so and we will go over it in greater detail tomorrow.
Questions about common law marriage? Contact the Law Office of Bryan Fagan
In the meantime, if you have questions about common law marriage please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys are available six days a week to discuss your case with you and to answer any questions you may have.
Our consultations are free of charge and can go a long way towards providing you with peace of mind on whatever family law issue is relevant in your life.
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “16 Steps to Help You Plan & Prepare for Your Texas Divorce”
If you want to know more about how to prepare, CLICK the button below to get your FREE E-book: “13 Dirty Tricks to Watch Out For in Your Texas Divorce, and How to Counter Them" Today!”
Get this FREE download about what you need to know before filing for divorce.
Other Articles you may be interested in:
- Is a Common Law Marriage Just as Good as a Ceremonial Marriage?
- Common Law Marriage: How to avoid being or getting married without your intent
- Frequently Asked Questions Regarding Common Law Marriage and Divorce
- Frequently Asked Questions Regarding Texas Marriage
- Non-Marital Conjugal Cohabitation Agreements for the Unmarried Couple in Texas
- Common Law Marriage and Texas Divorce Guide
- How to get a Common Law Divorce in Spring, Texas
- Am I Married? - Marital Status in Texas
- Can I sue my spouse's mistress in Texas?
- When is, Cheating Considered Adultery in a Texas Divorce?
- 6 things You Need to Know Before You File for Divorce in Texas
- Common Questions about Texas Prenuptial and Marital Agreements
Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.