The question of what will happen with your property after you and your significant another break up is a major concern for non-married, cohabitating persons in Texas. The laws that apply to Texans who are married when it comes to property division do not also apply to nonmarried persons. As a result, if you are living with your boyfriend or girlfriend you should pay attention to the information contained in this blog post. This is especially true if you all have been living together for an extended period and have accumulated property together- be it personal property, real property, or anything in between.
If you find that you have questions regarding this subject matter, then you are not alone. The subject of property division is complex for married people getting divorced in Texas. While you may never have gone through a marriage ceremony you and your significant other may be married through something called common law marriage. We will discuss these details later in this blog post. In the meantime, if you have questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. We offer free-of-charge consultations six days a week in person, over the phone, and via video six days a week.
Consequences of cohabitating with your unmarried partner
It probably would not surprise you to learn that it is not out of the ordinary for people in a relationship to live together though they are not married. You can do some quick internet research to determine how common this type of living arrangement is but you will likely find that it is at least as common for people under 40 to live with a partner who is not their spouse as it is for people under 40 to be married and living together. It is also common in this period for children to be born to unmarried persons. What used to be considered taboo or abnormal generations ago is no longer the case.
The difficulty that comes with this type of living arrangement is that it can feel to you that you and your significant other are in just as a committed relationship as married people even if you are not married. The fact that you have been living together, had children, and love each other may give you the impression or the feeling that your relationship is “basically” a marriage and as a result what married people go through in a divorce when it comes to property division is what you will go through as well.
It may surprise you to learn that this is not the case. The community property laws of Texas apply to married persons, not adults who are living together- no matter the nature of their relationship. The reality is that the State of Texas considers adults in a non-marriage relationship to be roommates and nothing more. Think of the circumstances that would surround you and a roommate who decided to move out of your home and go your separate ways. Would you think about going through a legal case to divide up the blender or other personal property in the home? Probably not.
Even though your relationship with your significant other may emotionally feel much more significant than a roommate situation, the law does not hold the same opinion. Rather, you are likely to find that you and your significant other can move out of the home that you share at any time with little to no legal ramifications. Additionally, if you own property with that person it is difficult to make a case that he or she is taking your property upon leaving. Buying a blender, mattress, or area rug with your boyfriend means that if you break up he may take that rug with him to his new apartment. Your legal recourses may be limited in terms of your being able to get the rug back, too.
The key to this discussion is that spouses are protected by the community property laws of Texas. For married people to end a relationship means that they have to go through a divorce. When married people move out of the family home and go their separate ways that do not end their marriage. However, if you and your boyfriend move out of your home and go your separate ways the relationship is over however you define the relationship. It is not dissimilar from a high school break up where you and your boyfriend would eat lunch at separate tables and associate with different friends. Adult relationships can be amorphous and ill-defined as the high school relationships we had back in school.
What you need to ask yourself is how you and your significant others define your relationship. This sounds a lot like high school, as well, for what it’s worth. Remember talking to friends about whether your significant other considers you their boyfriend/girlfriend? Ultimately the answer to that question may have required you to have a defined relationship conversation with him or her. For sixteen-year-old, you, finding out that the boy you had been hanging out with did not consider you to be his girlfriend may have been a hurtful moment but it at least provided clarity. You knew that the two of you were not dating or “together.”
By the same token, you need to figure out the type of relationship that you are currently involved in as an adult. You would think that adults would know whether they are married or not but life is not always that simple. What may have started as a dating relationship may have evolved. You started dating a guy and then moved in together after that. Moving in together led to you two having kids and doing a lot of domestic/martial duties together. What started as a fun and carefree relationship has shifted to something much more serious. You share a home, pay bills together, and are co-parents to a child.
It’s almost as if the two of you were married but did not know it. That is not the strangest thought to have considering your circumstances and the way that you have been living your life over the past years. Rather than brushing off this type of thought you and your significant other may have been “more married” than you would have thought. Before you laugh this off as something as silly as saying that you were “sort of” pregnant, bear with me here for a moment.
Common law marriage in Texas
Not all marriages begin with a formal ceremony, exchanging of “I do’s” and the kissing of a bride. Rather, what you and your significant other need to start thinking about is whether your relationship is a marital relationship. Common law marriages are legitimate marriages in Texas. However, because you and your partner did not go through with a marriage ceremony then the details need to be established before you’re knowing whether you are married or not. Let’s walk through the elements of a common-law marriage so that you can determine whether you are married or “playing house” with a significant other.
There are three criteria that we need to walk through regarding common-law marriage in Texas. Note that all three of these criteria must be met simultaneously for the two of you to be in a common-law marriage. First, you and your partner need to hold yourself out to others that you are married. The way that this could occur can take on a life of its own within your household. Sometimes people just up and decide to start calling their partner/significant other their husband or wife. Do you introduce your significant other as your wife? Do you tell people that you are married? If you both are engaging in this type of behavior, then you are holding yourself out to others as you are married. If I were to ask your four closest friends/family members if you and your partner were married or not what would they say? This is a strong indication that the two of you hold yourselves out as being married to other people.
Next, we would need you and your partner to live together as a married couple. This is not as easily established as you may think. Married people live together in the sense that they own a home or rent a home together. Both their names are on the rental agreement, mortgage, deed, or combination thereof. Even if both names are not on the documents, they both contribute to the home financially. When repairs are needed their community income is used to make those repairs. The down payment to the home as well as the mortgage payments come from community income. Both spouses have skin in the game as far as their finances are concerned.
You need to consider what your living arrangements are like with your partner. Do you all have one place to live? This is a key indicator of whether you are cohabitating. If you have an apartment that you stay in sometimes or if your partner goes to stay with her mom for a week at a time this would not be cohabitating. This would be sleeping over which is not the same thing. Often cohabitating takes on an added seriousness when you and your partner have children. At that point, you may decide that the stability of staying in the same house is what matters for your kids. You may also be in a position where you can no longer afford to pay the rent on that second apartment and have to suck it up and live together full-time.
As far as evidence of cohabitating is concerned, you can see if both you and your partner receive mail at the home where you are living. Even if you are cohabitating it can appear that you are not if your partner gets their mail at another address. I mention this point because, at a certain stage, you may have to present evidence to a court that you are cohabitating if you need to establish a common-law marriage. Being able to come up with evidence showing that you either are or are not in a cohabitating situation can be extremely important depending upon what side of the argument you are on.
Last, you need to agree with your partner that you are married. This needs to be a meeting of the situation of the mind where you have a conversation that we are married. Acting like you are married will not satisfy this agreement. Deciding that you may as well be married considering that you have children and live together does not constitute an agreement to be married. Rather, you and your partner need to be in lockstep with one another that you are married to one another. Take out a ring and propose a pinky promise, spit shake- whatever it is that you and your partner decide to do it is fine. However, the result must be that you two agree that you are married moving forward.
Inevitably this can come down to he said, she said type of disagreement later on about whether the two of you agreed to be married. You may explicitly remember a conversation at the dinner table where you both agreed to be married to one another. On the other hand, your partner may not remember the conversation that way. In this type of situation, you would need some additional evidence to show that your recollection was accurate. If you believe that you had this conversation in May 2022 and can produce tangible evidence that your spouse filled out an application for a car loan as Mrs. So-So using your last name rather than as Ms. So-So using her maiden name then you probably have a stronger case to argue that you all agreed to be married.
What happens when you and your partner decide to go your separate ways?
The question that we need to address in closing out today’s blog post is what exactly happens when you and your spouse/partner decide to call it a day when it comes to your relationship. If you and your partner cannot agree on whether or not you are common law married then this is likely to be a subject that a court needs to answer for you. For instance, if you file for divorce from your spouse and your spouse answers back that she is not your spouse and is instead a girlfriend then this would be a point of contention, to say the least. A judge would likely need to hear from both you and your spouse as to what evidence exists in support of your particular positions. This is why I mentioned a few words earlier about evidence that you may need to keep handy to prove that you are in a common-law marriage and not just a dating/romantic relationship.
At the end of the court hearing if you are determined to be in a common law marriage then you would go through a divorce just like people who were married by a judge or a priest would. There is no common law divorce that allows you to get out of your marriage just as easily as you entered into the marriage. Signing up for a common law marriage means signing up for a typical divorce that you undoubtedly are familiar with if you have read the blog for the Law Office of Bryan Fagan before.
Creating what is known as a postnuptial agreement is a great idea for you and your spouse if you have entered into a common-law marriage. A post-nuptial agreement is just like a prenuptial agreement. The only difference is that the post-nuptial agreement is created after you and your spouse have gotten married. One of the great benefits of a post-nuptial agreement is that you and your spouse can state what happens to your community property and your separate property if you get a divorce. This is a great way to sidestep the issues that many people experience in trying to divide marital property in a divorce.
If you are not in a common law marriage but rather are cohabitating with a boyfriend or girlfriend then you should also consider the creation of a cohabitation agreement. This agreement specifically states that the two of you are not in a common-law marriage. That way your assets and debts will not become the responsibility of the other person under any circumstances if you choose to end your relationship. The attorneys with the Law Office of Bryan Fagan can assist you in drafting either type of agreement depending on your particular circumstances.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or a child custody case.
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
