Picture this: a couple deeply in love, living together as partners for years, sharing their lives without ever having the big, fancy wedding ceremony. It’s like skipping the formalities and getting straight to the heart of the matter! In Texas, this couple could be considered married under the concept of common law marriage.

But what exactly is common law marriage in Texas, and how does it differ from the more traditional ceremonial marriage? Worry not, dear reader, for we’ve got you covered. This comprehensive guide will delve into the fascinating world of common law marriage in Texas and its many intricacies. Through engaging storytelling and real-life examples, you’ll discover everything from the legal rights and obligations of common-law spouses to the impact of common-law marriage on estate planning and immigration law.

So, if you’ve ever wondered whether you and your significant other might be considered informally married or are simply curious about this alternative route to marital bliss, grab a cup of coffee, get comfortable, and join us on this informative journey. We promise it’ll be an eye-opening read!

The Intriguing World of Common Law Marriage in Texas: A Tale of Love Without the Bells and Whistles

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

I have had some consults recently that made me think this topic should be included in any discussion regarding divorce tricks because when used, whether successfully or not, it can cause significant aggravation, be very expensive, and take a lot of time defending it.

Scenario #1 – You May Be Married if you Tell People you are and Act Married

Recently, I met 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 divorce petition and said, “I want to know how I am married.”

“Am I married?” It seems like a simple question, right? Sometimes, however, it is not. I asked him, “Have you ever 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.”

Scenario #2 – Be Careful Cohabitating After a Divorce

I generally will caution my clients about cohabitating after the divorce. This is because someone who ended up hiring us came in very confused after his wife had sued him for a divorce.

The reason for his confusion was that he had already divorced her. He and his ex-wife had only been married for a few years, and divorce had netted her practically nothing by way of a property settlement. Because of their short-term marriage, they had no children; each took from the marriage whatever they brought, and not much more.

Not long after the divorce, his ex-wife fell on hard times, and he felt sorry for her, so he let her move back into the home. She did not have a job or access to health insurance, so he got her added to his insurance policy by telling them they were married.

As a result, his ex-wife benefited from his dental coverage, hospital, medical, surgical, and all other insurance. His wife scheduled her appointments at the dentist, ophthalmologist, and plastic surgeon.

His ex-wife ended up getting:

Dental surgery
Lasik surgery
A facelift
A tummy tucks
Breast enhancement

This gentleman told me his ex-wife convinced him that all these things were a good idea and he would benefit from them. He also gave in part out of guilt regarding the divorce.

He also conceded to help her buy a new wardrobe. Eventually, he did start to protest as the bills started to rack up. Whenever he did, she would fly off the handle and guilt him. While they had only been married for three years, they stayed together after the divorce for six years.

When his ex-wife filed for divorce again, as previously mentioned, it took my consult by surprise because he thought he had already divorced her. He never considered that Texas common-law marriage law might force him to divorce her again.

As he explained how Texas common-law marriage worked, he let me know he would not repeat the same mistake.

Scenario #3 – Doing a Cost-Benefit Analysis

Our law firm has represented clients for and against a common-law divorce. Some of these cases have ended up going to trial. This includes twice before a Jury. In most family law cases, it makes economic sense to settle a case before it ever reaches the trial stage. The longer a case drags on, the more expensive a case is.

Jury trials also tend to be more expensive than trials before a judge. One big reason for this is that jury trials often take longer to try. At the very least, there is an extra day to pick the jury. However, there is often more stopping and starting when a jury is involved.

This is because some arguments take place outside of the jury’s ears. This means the bailiff must escort the jury outside the room. Alternatively, the judge will call the lawyers to return to the judge’s chambers. All these things often add up to several more days of trial.

Having defended and tried cases involving the issue of a common-law marriage, I can say with experience that it makes a case quite a bit more expensive. On the low end, if a party contests the existence of a common-law marriage, it adds at least another $20,000. However, if the case has to be trial, that number can easily double or triple.

For this reason, I will often do a cost-benefit analysis with my clients if they want to defend against the existence of common-law marriage. If the “marriage” is short and there wouldn’t be a lot of common law property, it may be quite a bit cheaper to admit there is a marriage and divide up what little community property there is.

A gentleman came to meet me in a consult to get a second opinion. He was currently represented and had been defending against a common-law marriage. I also found out it was going to a jury trial. The man had already spent about $60,000 and hadn’t made it trial yet.

From my discussions with this man, I pinpoint that it had only been for about three years if they were married. This was because, before that period, he had been married to someone else. In Texas, you can only be married to one person at a time, so it was impossible to marry until after his divorce.

The man was concerned that if he admitted marriage, then his new “wife” would get a large portion of his assets. From questioning, it did not sound like there was much community property. The majority of his assets would be his separate property.

It also sounded like I had created an excellent paper trail for a common-law marriage. He had emailed someone that the woman in question was his wife. He told me, “I just did that so she could sell/show my house. She doesn’t have a real estate license.” The man had also listed the woman in his will as his common-law wife.

From what I was hearing, it sounded like this many were spending $1,000 for every dollar he was trying to save.

Scenario #4 – A Common-law marriage is Just as Good as A Ceremonial Marriage

A while back, I met with a gentleman and he was deeply concerned that his wife may get a portion of the fortune he could acquire after he got a patent and his invention went on the market. From talking to him, I learned his marriage was a common-law marriage.

Once I learned he had a common-law marriage, I started to ask him questions. When I went through my usual questions, it started to sound like he might not have a common-law marriage. I then asked him why he thought he might be married. “Well, we signed an affidavit of informal marriage.”

The gentleman hoped I would tell him that a common-law marriage was not as good as a ceremonial one through further discussions. I told him a common-law marriage is just as good as a ceremonial one.

This upset my consult. He did not like hearing that his patent may be community property. He told me, “but it’s only a common-law marriage. Why would she be entitled to my patent? It is only in my name.”

I knew he did not understand what I was saying when he said that. I decided to try giving him an analogy. I told him, “If you have sex with someone and get them pregnant, are they any less pregnant than if they go to the doctor and get pregnant by in vitro fertilization?”

I explained to him common-law marriage is like that. “You are not any less married just because it is a common-law marriage.”

My consult concluded that he should never have signed the affidavit of informal marriage. His wife had convinced him that it would be good for them to sign the affidavit. However, he never felt like he had benefited from the affidavit, and only she had.

The Distinctive Nature of Common Law Marriage Versus Ceremonial Marriage

In Texas, common law marriage, also known as informal marriage, is a unique concept that differs from the traditional ceremonial marriage. While both types of unions provide legal recognition to the relationship, the way they are established and documented varies.

A ceremonial marriage entails obtaining a marriage license, participating in a formal ceremony, and having the marriage solemnized by an authorized individual. In contrast, a common law marriage can be established in Texas without these formalities.

The Legal Rights and Obligations of Common Law Spouses in Texas

Common law spouses in Texas enjoy similar rights and obligations as those in a ceremonial marriage. These include rights to:

Share property and assets acquired during the marriage
Receive spousal support in case of a divorce
Make medical decisions for their spouse in case of incapacity
Claim inheritance upon their spouse’s death

These rights and obligations apply as long as the couple meets the three primary criteria for a common law marriage in Texas:

They agree to be married
They live together as a married couple in the state
They represent themselves as a married couple to others

Debunking Common Misconceptions About Common Law Marriage in Texas

There are several misconceptions surrounding common law marriage in Texas, including:

Duration: Contrary to popular belief, there is no minimum time period that a couple must live together before they can be considered informally married.
Cohabitation: Merely living together does not automatically establish a common law marriage. The couple must also agree to be married and represent themselves as married to others.
“Upgrading” to a ceremonial marriage: A common law marriage is legally binding in Texas and does not need to be “upgraded” to a ceremonial marriage to be recognized.

Proving or Disproving the Existence of a Common Law Marriage in Texas

Proving or disproving the existence of a common law marriage in Texas can be challenging due to the lack of formal documentation. However, certain evidence may be presented in court to support or refute a claim, such as:

Written or verbal agreements between the parties
Joint tax returns or bank accounts
Insurance policies listing the other party as a spouse
Evidence of the couple presenting themselves as married to others

In some cases, a couple may choose to sign a Texas Declaration of Informal Marriage to provide legal proof of their union.

Property Division in Texas Common Law Marriage Divorce Cases

Texas is a community property state, meaning that all assets and debts acquired during a marriage are considered jointly owned by both spouses. In a common law marriage divorce case, the court will typically divide the community property in a just and right manner, considering various factors such as:

Each spouse’s earning capacity
The duration of the marriage
The needs of any children

Separate property, such as assets owned before marriage or received as gifts or inheritance, is not subject to division in a divorce.

Spousal Support and Alimony in Texas Common Law Marriage Divorce Cases

In Texas, spousal support or alimony may be awarded in a common law marriage divorce case if certain conditions are met. These conditions include:

The marriage lasted at least 10 years, and the requesting spouse lacks sufficient resources to meet their minimum reasonable needs
The requesting spouse is unable to work due to a disability or caring for a disabled child
The paying spouse has been convicted of family violence within two years before the divorce filing

The amount and duration of spousal support depend on factors such as the length of the marriage, each spouse’s financial resources, and the recipient ‘s needs.

Child Custody and Visitation in Texas Common Law Marriage Divorce Cases

In a common law marriage divorce involving children, Texas courts prioritize the best interests of the child when determining custody and visitation arrangements. Factors considered by the court may include:

Factors for Child Custody and Visitation	Description
Child’s emotional, physical, and educational needs	Courts consider the overall well-being of the child and each parent’s ability to fulfill their needs.
Each parent’s ability to provide a stable home environment	The court evaluates the living conditions and stability each parent can provide for the child.
Child’s preference (depending on age and maturity)	The court may take into account the child’s wishes if they are of an appropriate age and maturity level.
Existing relationship between child and each parent	The court examines the bond between the child and each parent to determine the best custody arrangement.
History of family violence or substance abuse	If either parent has a history of violence or substance abuse, the court will consider this information.

Joint custody is often preferred, as it allows both parents to remain involved in the child’s life, but the court may grant sole custody if it is in the child’s best interest.

Estate Planning and Common Law Marriage in Texas

Estate planning is essential for common law spouses in Texas to ensure their wishes are carried out upon their death. A common law spouse has the right to inherit from their partner if there is no valid will. However, without proper estate planning, disputes may arise, and Texas intestacy laws could distribute the assets in a manner not aligned with the deceased’s wishes.

To avoid potential issues, common law spouses should consider drafting:

A last will and testament specifying their preferred distribution of assets
A durable power of attorney designating a spouse to make financial decisions on their behalf in case of incapacity
A medical power of attorney granting a spouse the authority to make healthcare decisions if the individual becomes incapacitated

Common Law Marriage and Immigration Law in Texas

Common law marriage can have implications for immigration law in Texas. If a foreign national is in a recognized common law marriage with a U.S. citizen or lawful permanent resident, they may be eligible for immigration benefits such as a family-based green card.

To establish the validity of a common law marriage for immigration purposes, the couple may need to provide evidence of their relationship, such as:

A Texas Declaration of Informal Marriage
Joint financial documents or property deeds
Affidavits from friends and family attesting to the couple’s marital relationship

What Is A Declaration of Informal Marriage in Texas?

If you and your spouse agree, the two of you can sign a ‘Declaration of Informal Marriage’ and file it with the county clerk.

Under Texas Family Code Section 2.401(a)(1), the county clerk serves as prima facia evidence that the parties have entered an informal marriage.

A Declaration of Informal Marriage allows a couple to choose the date of their marriage.

Is Common-Law Marriage a Texas Thing?

In the above consult, the man was highly frustrated that Texas had common-law marriage laws. 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

Comparing Common Law Marriage in Other States to Texas Law

While Texas is one of the few states that recognize common-law marriages, other states have varying laws. Some states, such as Colorado and Kansas, have similar requirements for establishing a common-law marriage. However, others, like Alabama and Rhode Island, have specific residency or age requirements.

In states that do not recognize common law marriage, such as California and New York, couples cannot establish a legally binding union without undergoing a formal ceremony.

It is crucial for couples in a Texas common-law marriage to understand their legal rights and obligations, both in Texas and when relocating to other states. Consulting with a knowledgeable family law attorney can help navigate these complex legal matters and protect one’s interests in various situations.

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 and
Hold themselves out to others in Texas as husband and wife

Agreement to be Married

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

This means that in an evidentiary hearing, the spouse alleging a common-law marriage will need to prove 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 other party’s actions can be used to prove that there was an agreement to be married.

Living Together

The next element needed to establish a common-law marriage is that the parties 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 commonly done by a husband and a wife.

There is no minimum 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
Each person’s actions and conduct 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 some people’s beliefs, there is no statute of limitations for establishing a common-law marriage. Provided that the elements are met that:

There’s an agreement to be married
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 is established, death, divorce, or annulment is the only way to end it.

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 children result from a common-law marriage or property acquired during the marriage term, 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 simultaneously and had to 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 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 exists is stuff or property. They want to divide up property that may have been acquired during the marriage.

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

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

Proving Two People Are Common-Law Married

One of the most significant ways a common-law marriage is different from a ceremonial marriage is that 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 favor of a marriage, then the divorce process will proceed as usual.

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 you and the other person sign the deed 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 a spouse as their son-in-law or daughter-in-law;
Introducing the other person to your colleagues, neighbors, and friends as your husband/wife.

Does Texas Recognize Common-law marriages from the Other States?

Maybe. To prove the existence of a marriage that purportedly occurred in another state or a 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 determining 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 the law of either state?
Which state’s law controls?
Texas Public Policy
Full Faith & Credit Clause

Public Policy

Suppose a Texas court refuses to recognize a foreign marriage because it violates Texas public policy. In that case, 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 other states’ judicial proceedings, public acts, and records.

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

The Enchanting Finale: Embracing the Unconventional Path of Common Law Marriage in Texas

And so, dear reader, we’ve reached the end of our captivating exploration of common-law marriage in Texas. Who knew that the Lone Star State would be a haven for lovebirds seeking an alternative path to marital recognition without the fuss of a formal ceremony?

In this enthralling journey, we’ve unraveled the mysteries of common law marriage, from its unique characteristics to the legal rights and obligations it bestows upon couples. We’ve also debunked common misconceptions and delved into crucial aspects like property division, spousal support, child custody, estate planning, and immigration law.

In short, common law marriage in Texas is a fascinating and legitimate way to establish a marital union, as long as the couple agrees to be married, lives together as a married couple, and represents themselves as married to others.

As you walk away from this engaging narrative, remember that love can flourish in many forms, and sometimes, the road less traveled leads to the most enchanting destinations. So whether you’re contemplating a common law marriage or simply intrigued by this unconventional love story, we hope you’ve found this guide both enlightening and entertaining. And who knows? Maybe your own tale of romance will be a Texas-sized adventure in the world of common law marriage!

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Frequently Asked Questions

Is it hard to prove common law marriage in Texas?

Proving a common law marriage in Texas can be difficult because there is no formal process for creating a common law marriage. To establish a common law marriage, the couple must prove that they intended to be married and that they held themselves out to the community as being married.

Why are common law marriages disfavored?

Common law marriages are disfavored because they can be difficult to prove and can lead to legal disputes. In addition, some people may enter into a common law marriage without fully understanding the legal implications of doing so.

What is common law marriage for dummies?

Common law marriage is a type of marriage that is recognized in some states, including Texas, where the couple has lived together for a certain period of time and holds themselves out to the community as being married. Unlike a traditional marriage, there is no formal ceremony or marriage license required to create a common law marriage.

What is a con of common law marriage?

One of the cons of common law marriage is that it can be difficult to prove, which can lead to legal disputes if the couple separates. In addition, common law marriage can create some confusion around property ownership and inheritance rights, as the legal rights of common law spouses are not always clear.

The Dirty Trick of the Common Law Marriage