Common Law Marriages in Texas, Part Two

In our previous blog post, we explored the intricacies of common law marriages in Texas. We shed light on the three crucial qualifications that must be met for the legal recognition of your union. However, common law marriages bring forth a plethora of questions and scenarios. One of which is, “Can you change your last name with common law marriage in Texas?”

To provide a comprehensive understanding of this unique marital arrangement, we’ll revisit the three qualifications. Furthermore, we will address common misconceptions, the name-change aspect, and other essential considerations surrounding common law marriages in Texas.

Common Law Marriage Requirements

In brief, the three essential requirements for a common law marriage to be recognized as valid entail:

  1. Both individuals must be consenting adults.
  2. They must reside together in the state of Texas as a married couple after mutually agreeing to be married.
  3. They must present themselves as a married couple to the community.

Simply telling someone every so often that you and your spouse are married will not suffice. Now, let’s delve into today’s blog post. We’ll explore past court rulings that establish how individuals have held themselves out as married to others.

On a more formal level:

  1. Filing your taxes as married filing jointly, rather than as a separate filing can assist in finding you are common-law married to your spouse.
  2. Using your spouse’s last name if you are a woman when applying for a social security card or a bank account can go a long way towards meeting this third qualification for a common-law marriage.

Ultimately, it is the judge who has the final say

No matter what you do to attempt to prove to others that you are married, the judge will have the ultimate say one way or another.

This means that the standards they use may not be the same as what another judge would use, given the same facts and circumstances. In common law marriage, you and your spouse must “perform” like married people once you have agreed to be married to one another.

This is so essential because there is no formal marriage ceremony or certificate. Your only proof of the marriage is how you act towards one another in public and your community.

If you do not want to meet the three qualifications and be considered common-law spouses in the eyes of the law, you should take caution to prevent any misunderstanding.

A relatively straightforward way to do this would be to enter into an “anti” marriage contract whereby you and the person you are residing with enter into a contract stating explicitly that you do not agree today and shall never in the future agree to reside together as married persons.

This is an informal act even if the pen is put to paper, so beware of the risks of losing the contract or having your cohabitating partner revoke their agreement in the future. In addition to the anti-marriage contract, it may make sense to draft a prenuptial agreement just in case.

This agreement would divide up your property just in case a court finds a valid common law marriage to be in place, even if each of you signed the anti-marriage contract.

Premarital agreements in the context of a common-law marriage

A premarital agreement is defined as an agreement between prospective spouses made in contemplation of marriage and effective upon marriage. Property means present or future, vested or contingent interest in real or personal property, including income and earnings.

If your relationship isn’t legally recognized as a common-law marriage in Texas, the premarital agreement has no legal significance. Moreover, if you’re wondering, “Can you change your last name with common law marriage in Texas?” it’s essential to note that common-law marriages won’t typically affect your last name. As mentioned earlier, having a contract with your partner to never marry is an additional precautionary measure.

Benefits to a cohabitation agreement

We’ve already stated that without one of these cohabitation agreements, you run the risk of being found to be in a valid common law marriage even if that was not your intent.

As Texas is a community property state, you risk losing assets and property if your relationship ends and your partner attempted to assert that you were common law married to one another. If you earn considerably more income than your partner or have much more in the way of assets, then the risk is more substantial for you than for your partner.

Even if you and your partner are not wealthy, you can both stand to benefit from an agreement like this. People will often include budgetary items for their family inside of a cohabitation agreement that intends to control costs for the family.

If you all hold life insurance policies or other financial documents that involve the other, those documents may be included by reference within the cohabitation agreement as well.

Come to the table with an attorney before engaging in negotiations

A judge must rule that both sides were represented or had the opportunity to be represented by an attorney. This is needed to validate any premarital document or agreement.

This shows the judge that both parties were advised of their rights. It means they entered into the agreement fully knowing those rights and duties. Having learned about these agreements is the first part of the battle. Choosing someone to be by your side can provide peace of mind as well.

Questions about cohabitation agreements and common law marriage? Contact the Law Office of Bryan Fagan, PLLC

To learn more about cohabitation agreements and common law marriage, please contact the Law Office of Bryan Fagan, PLLC, today. One of our licensed family law attorneys is only a phone call away. We can meet with you six days a week to discuss your situation. We represent clients across southeast Texas and would be honored to discuss doing the same for you and your family.


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Other Articles you may be interested in:

  1. Common-Law Marriage in Texas
  2. Is a Common Law Marriage Just as Good as a Ceremonial Marriage?
  3. Common-Law Marriage: How to avoid being or getting married without your intent
  4. Frequently Asked Questions Regarding Common Law Marriage and Divorce
  5. Frequently Asked Questions Regarding Texas Marriage
  6. Non-Marital Conjugal Cohabitation Agreements for the Unmarried Couple in Texas
  7. Common-Law Marriage and Texas Divorce Guide
  8. How to get a Common Law Divorce in Spring, Texas
  9. Am I Married? – Marital Status in Texas
  10. Can I sue my spouse’s mistress in Texas?
  11. Common Questions about Texas Prenuptial and Marital Agreements
  12. What living arrangements may lead a judge to conclude that you are common law married?
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