Common Law Marriage and Texas Divorce Guide

In Texas, many people are aware that Texas recognizes common-law marriage. However, not everyone that I meet with is aware of what it takes to meet the Texas statutory requirements of being common law married or why it is important.

Recently I was meeting with a man who was bewildered that he had been sued for divorce. When I asked him about his case he plopped down an original petition for divorce and said, “I want to know how I am married?”

"Am I married?" Seems like a simple question, right? Sometimes however it is not. I asked him “You, never had a ceremonial marriage?” He said “No.” I then started asking him the following questions:

Q: “Have, you ever lived together?”

Answer: “Yes.”

Q: “Have, you ever introduced each other as being husband and wife?”

Answer: “yes, out of convenience.”

Q: “Have, you ever filed taxes together?”

Answer: “Well we have kids together so I filed as head of household and claimed her and the kids on my tax return.”

I let him know that he and his ex may be common-law married. "Common Law marriage is something that exists in Texas, although it is called Informal Marriage under the Family Code."

In this article, we will discuss some of the common questions people have regarding common law marriage in Texas.

Is Common-Law Marriage a Texas Thing?

In the above consult the man was extremely frustrated that Texas had laws that recognizes the Common-Law Marriage. However, Texas is not the only state the following states have laws regarding common law marriage:

Alabama	Colorado	District of Columbia	Georgia (if created before 1/1/97)
Idaho (if created before 1/1/96)	Iowa	Kansas	Montana
New Hampshire (for inheritance purposes only)	Ohio (if created before 10/10/91)	Oklahoma (possibly only if created before 11/1/98.	Pennsylvania (if created before 1/1/05)
Rhode Island	South Carolina	Texas	Utah

The Texas Statutory Requirements for a Common-Law Marriage

An informal or common-law marriage is a marriage between two people who have not obtained a marriage license and participated in a marriage ceremony and under Texas Family Code Section 2.401:

Agree to be married
Live together in Texas as husband and wife
Hold themselves out to others in Texas as husband and wife and

Agreement to be Married

One of the elements to establish a common-law marriage the parties must agree to be married.

This means that in an evidentiary hearing the spouse alleging a common-law marriage will need to put on evidence that the parties intended to have a present, immediate, and permanent marital relationship wherein they both agreed to be husband and wife.

An agreement to get married at some later time in the future is not sufficient to establish an agreement to be married. If there is no written agreement to be married, your actions and the actions of the other party can be used to prove that there was an agreement to be married.

Living Together

The next element need to establish a common-law marriage, is that the parties must have lived together in Texas as husband and wife.

Texas case law states that to meet the element of living together as husband and wife, you must demonstrate that you maintained a household and did things that are commonly done by a husband and a wife.

There is no minimal number of days you must have resided together in Texas to meet this requirement.

Holding Out

The final element needed to establish a common-law marriage is that parties must have told other people in Texas that they were married.

This can be accomplished either by:

Spoken words or
Actions and conduct by each person may be enough to fulfill the requirement of holding out.

In other words there can be no secret common-law marriage.

Is there a Statute of Limitations on Establishing a Common-Law Marriage?

No. Contrary to what some people believe, there is not statute of limitations for establishing a common-law marriage. Provided that the elements are met that :

there’s an agreement to be married
that the couple tells other people about it and
The couple could live together for even one day

This could be enough to establish a common-law marriage.

Legal Effect of a Common-Law Marriage

If a common-law marriage exists it has the same legal significance as a ceremonial marriage. This means:

you would have to file for divorce when the relationship ends just as you would if you had a ceremonial marriage.

Once a common-law marriage the only way to end it is by death, divorce, or annulment.

There is no such thing as a common-law divorce.

If a common-law marriage exists, then all property and debts accumulated during the duration of the common-law marriage that are community property are subject to division by the Court at the time of the divorce.

Alternatively, a couple can file a “declaration of informal marriage” under Texas Family Code Section 2.401(a)(1) with the county clerk as prima facia evidence that the parties have entered an informal marriage.

Practically speaking, if there are children resulting from a common-law marriage or property acquired during the term of the marriage, as a divorce is sometimes the best and easiest way to dissolve the relationship.

One example of this is from a case where I represented a mother who in addition to having a child with the father purchased a home with him. Unfortunately, when I looked at the elements to see if we could establish a common-law marriage there was no evidence in support.

It was easy enough to establish Orders regarding the child. Unfortunately, disentangling her from the house could not be accomplished at the same time and must be pursued in a different lawsuit. This was frustrating for her because the father was living in the house rent free and was not paying any of the bills.

Why you may want to deny the existence of a common-law marriage

The main reason people want to prove that a common-law marriage is stuff. They want to divide up property that may have been acquired during the marriage.

That happens to also be the most common reason why someone wants to deny the existence of a common-law marriage. They want to avoid allowing their alleged spouse from getting community property rights over any of the property.

If the party with most of the property can prevent the existence of a common-law marriage being proven, then the alleged spouse has no rights to their property

Proving Two People are Common-Law Married

One of the biggest ways a common-law marriage is different than a ceremonial marriage is if it is contested the spouse alleging a marriage will need to put on proof.

If the marriage is contested it may be necessary to have a mini trial or evidentiary hearing on the existence of the marriage. If the Jury or Judge finds in favor of a marriage then the divorce process will proceed as normal.

Some evidence of a common-law marriage could include:

Filing a federal income tax return with the other person named as your spouse;
Obtaining a life insurance policy and identifying the other party as your spouse and designating them as beneficiary;
Purchasing a home or other real property where the deed is signed by you and the other person as husband and wife;
Taking out a loan with the other person being identified as either your husband/wife;
Sending cards or letters to the other party that state “from your loving husband,” or “to my loving wife;”
Hosting or attending an event where you introduce the other person as your spouse;
Your family members referring to spouse as their son-in-law or daughter-in-law;
Introducing the other person to your colleagues, neighbors, and/or friends as your husband/wife; and/or

Does Texas Recognize Common Law Marriages from Other States?

Maybe. To prove the existence of a marriage that purportedly occurred in another state or foreign country, the party alleging a marriage will need to perform a foreign-marriage analysis.

This is done by answering a series of questions aimed at determine whether Texas Law or the law of the foreign state or country applies and whether under that law, the requirements for proving up a marriage have been met.

These questions include:

Were the marriage requirements met under law of either state?
Which state’s law controls?
Texas Public Policy
Full Faith & Credit Clause

Public Policy

If a Texas court refuses to recognize a foreign marriage because it violates Texas public policy the parties to the foreign marriage can return to the state or country where the marriage took place and seek a divorce, there.

Full Faith & Credit

Under the full faith and credit clause, each state must give full faith and credit to the judicial proceedings, public acts, and records of other states.

Some Texas courts have held that because marriage is not a judicial judgment and is more like a contract or license, a marriage in one state has never been considered constitutionally entitled to automatic recognition in other states.

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