Common Law Marriages in Texas, Part Two

Much of yesterday's blog post related to common law marriages discussed the three qualifications that must be in place for yours to be a valid common law marriage:

be two adults who consent to be married
live together in the state of Texas as spouses after the agreement to be married has been reached and
to hold out to other people in the community that you are married.

Let's begin today's blog post discussing how prior courts have found persons to have held out to others that they are married.

Simply telling someone every so often that you and your spouse are married will not suffice. Consistently making comments to neighbors and people in your community that you both are married to one another is an excellent way to show that you are married. If you introduce yourselves repeatedly that you are married at every opportunity, that, too, will go a long way to showing that you are married.

On a more formal level:

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.
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 refers to an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.

If your relationship is not considered by a court to be a common-law marriage, then the premarital agreement is not valid and holds no legal importance for you or your partner. As we stated before, it is a backup to your backup plan to enter into a contract with your partner agreeing never to be married at any point in time.

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

For any premarital document or agreement to be considered valid, a judge must rule that both sides to the agreement were represented or had the opportunity to be represented by an attorney.

This shows the judge that both parties were advised of their rights and 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 do not hesitate to contact the Law Office of Bryan Fagan, PLLC, today. One of our licensed family law attorneys is only a phone call away and 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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