Common Law Marriage and Texas Divorce Guide

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.

A Brief Intro to Common Law Marriage

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:



District of Columbia

Georgia (if created before 1/1/97)

Idaho (if created before 1/1/96)




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



Understanding Common-Law Marriage in Texas

Common-law marriage, referred to as Informal Marriage in the Texas Family Code, deviates from the traditional image of marriage. It doesn’t require a marriage license or a formal ceremony. In Texas, a common-law marriage is legally recognized when three key criteria are met:

  • Agreement to be Married: Both parties must mutually agree and commit to being married.
  • Living Together in Texas: The couple must cohabit in Texas, presenting themselves as husband and wife.
  • Holding Out to Others: The couple must publicly act as a married couple, acknowledging their marital status to others.

This form of marriage is distinctive because it bypasses ceremonial formalities, yet it still forms a legally binding union, indistinguishable in law from a ceremonially married couple.

Common Questions about Common-Law Marriage

Common Law Marriage and Texas Divorce Guide

In this section, we address some of the most common questions and misunderstandings surrounding common-law marriage in Texas. From comparing how different states recognize these unions to understanding their legal implications, we aim to clarify this often-confusing aspect of family law.

Misconceptions and Queries

Common-law marriage often leads to confusion and misconceptions. People frequently wonder about the differences between living together and being common-law married, or how such a union can be legally recognized without a ceremony.

Comparative State Laws

Texas isn’t alone in recognizing common-law marriage. Other states like Colorado, Iowa, and Kansas, among others, also acknowledge such unions, although the specifics may vary. For instance, some states have restrictions based on the date the relationship began or limit recognition to certain legal purposes.

In Texas, common-law marriage is not a ‘lesser’ form of marriage. It entails the same legal responsibilities and rights as a ceremonial marriage. This means that upon dissolution, common-law couples must go through the same divorce process, including the division of assets and debts, as traditionally married couples. Understanding this legal parity is crucial for couples in or entering into a common-law marriage in Texas.

Challenges in Proving Common-Law Marriage

Proving a common-law marriage in court can be complex and nuanced. Unlike ceremonial marriages, there’s often no marriage certificate to present as evidence. Instead, couples must rely on other forms of proof, which can include:

  • Tax Filings: Joint tax returns or listing one another as dependents can indicate a marital relationship.
  • Insurance Policies: Naming each other as beneficiaries in life insurance policies.
  • Property Deeds: Jointly owning property or signing deeds as husband and wife.
  • Joint Loans: Co-signing loans or holding joint credit accounts.
  • Personal Correspondence: Letters or cards that refer to each other in marital terms.
  • Public Acknowledgment: Evidence of introducing each other as spouses in social settings.

In contested cases, where one party disputes the existence of a common-law marriage, a mini-trial or evidentiary hearing is often necessary. This process involves presenting the above evidence to a judge or jury to establish the marriage’s validity.

Common Law Marriage and Texas Divorce Guide

Denying the Existence of a Common-Law Marriage

Denial of a common-law marriage typically arises during divorce proceedings or inheritance disputes. Reasons for denial include:

  • Property Rights: Denying a common-law marriage can be a strategy to prevent division of property under community property laws.
  • Debt Avoidance: To avoid being responsible for debts accumulated during the relationship.

The implications of denying a common-law marriage are significant. If a court rules that no marriage existed, one partner may lose rights to property, spousal support, and other benefits that a legally recognized spouse would have.


Common-law marriage in Texas is a legally recognized union that carries the same weight and implications as a ceremonial marriage. Understanding its nuances, from establishing its existence to the implications of denying such a union, is crucial, especially in divorce proceedings or property disputes. Given the complexities involved, seeking legal advice from a family law attorney is highly recommended to navigate these unique marital and divorce scenarios in Texas effectively.


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