Something that many people in Texas do not know is that it is possible to be married without going through a formal marriage ceremony. While many people dream of their wedding day from the time that they are small children, this may not be the goal for you or your significant other. A common-law marriage solves the issue of gaining all the rights and protections of marriage along with the lack of formality associated with the beginning of the marriage itself. For anyone who wants to be able to be married to someone that they love but not have to go through a formal marriage ceremony, a common law marriage is for you.
However, even those people who are aware of what a common law marriage is oftentimes will have questions about this topic. We are so used to thinking about marriage as having a formal beginning point that the idea of being married without doing anything special or out of the ordinary can come as a shock or surprise to our senses. Everyone remembers the date of their wedding or at least the events that surrounded it. There are photographs, videos, and other mementos that you carry with your spouse from that date. Your wife may even still have the wedding dress in which she was married.
On the other hand, a common law marriage does not have that definite starting point. Rather, a common law marriage begins not on a specific date with an event attached to it but rather when three conditions come into place which define the relationship with your significant other. This is the topic that we will be discussing today with the Law Office of Bryan Fagan. Common law marriage is probably one of the least known components of family law, but it carries with it significant consequences for you and your significant other.
We are going to walk through the elements of a common law marriage and in what areas of your life a common law marriage can have the most significant impact. If you have a question about any of the material that we discuss in today's blog post, then please do not hesitate to contact our law office. We offer free-of-charge consultations six days a week and in person, over the phone, and via video with experienced family law attorneys. These consultations can help you determine whether you are in a common-law marriage and what impact that marriage will have on your present and your future.
How is a common law marriage established in Texas?
Texas is one of a handful of states in our country that honors common-law marriages. As we alluded to earlier in today's blog post, a common-law marriage does not begin with a ceremony or event. However, you and your common-law spouse are certainly able to celebrate the beginning of your marriage with an event or ceremony if you choose. However, in the eyes of the law, a common law marriage begins not with anything formal but rather with three conditions coming into place at the same time. This is why common law marriages are also known as informal marriages.
The first of the three conditions which must be in place for your relationship to be a legal common-law marriage is that you and your spouse must live together. That can be a difficult situation to sometimes explain to someone what it exactly means. Living together means deciding to reside with your spouse in a specific location for an extended period. It does not mean having your own home while your spouse has their own home in another location. Going back and forth between homes creates a complicated circumstance where you would need to prove the existence of a common-law marriage. Rather, if you and your significant other live in one location together without any option as far as a second or third home to live in then this would be a good starting point to establish a common law marriage.
Next, you and your spouse would need to make a conscious decision and agree to be married. Since there is no marriage certificate or formal marriage ceremony this can sometimes be a difficult element to prove. Suppose that in your mind you and your significant other had a discussion in which both of you agreed to be married. After that conversation, you walked away believing wholeheartedly that you and your significant other were now man and wife. There was no doubt about her agreeing to be your spouse just as if the two of you exchanged vows in a formal marriage ceremony.
On the other hand, your significant other did not walk away from the conversation under the same impression that the two of you were now married. She believed that the discussion was merely hypothetical and that the two of you continued to be in a committed yet nonmarital relationship. What this means for the state of your relationship is that you cannot be common law married under this scenario. While you believe that you and your significant other are married your significant other does not feel the same way about you. She considers the two of you to be in a committed relationship but not in a marriage. Thus, this necessary element of a common-law marriage could not be satisfied.
Rather, for you to feel comfortable that you are in a common-law marriage you should have some sort of assurance from your significant other that the two of you agree when it comes to the nature of your relationship. This does not mean that you must immediately change the way that you relate to your spouse now that you are common law married but it does mean that the two of you should look one another in the eye and at the very least have an oral agreement to be married. If not that, then a written agreement between the two of you wherein you agree to be married would seem to be the next best thing. This is not the same thing as a marriage certificate but would serve a similar purpose when it comes to establishing a common law marriage.
The final element needed to establish a common law marriage in Texas would be to hold out to the community that the two of you are married. This does not mean that one of you must climb onto the roof of your home and shout to passersby that you and your spouse are now married. While this may do the trick it is not necessary. Having a family and close friends get together after the agreement to be married is made would be a good start to establish that you are holding out to the community that you are married. Otherwise, referring to one another as your husband or wife in public, attending events as married people, or having family members refer to your significant other as your spouse would be examples of how you could hold out to the community that the two of you are married rather than in a committed relationship of another variety.
How common law marriages can be tricky for you and your significant other
What we just went through is a helpful guide on how to determine whether you are in a common-law marriage and how to establish that marriage if you desire to do so. With that said, while this information that we just talked about is straightforward when you get right down to it there can be complications associated with establishing a common-law marriage. One of the things that an experienced family law attorney can tell you is that while a situation or circumstance may be straightforward in a legal code book very rarely is it the case in real life that the same situation ever is produced as clearly as it is in a book. People complicate circumstances and that is something that you must account for when it comes to your life and the status of your relationship with a significant other.
To be in a common law marriage, you need only establish three conditions concurrently. What can end up happening, however, is that either you or your spouse will eventually no longer want to be in a common-law marriage. At that point, many people believe that to simply end the relationship means to move out or otherwise no longer associate with your partner. This would be how a typical dating relationship would end. There will be no formal event ending the relationship. It would simply be a matter of going in a different direction from that person and ending the relationship.
In a common law marriage, you and your spouse would still need to go through a divorce just like anyone else who is married. One of the misnomers about a common law marriage is that because you did not have a formal marriage ceremony then it must not be the case that a formal divorce would be needed. This is not true. Just because you did not have a formal beginning to your marriage does not mean that there does not need to be a formal end period to that point, you and your spouse would need to go through a divorce. What we need to figure out in today's blog post is what impact a divorce would have on your life and that of your spells as opposed to simply a breakup as you would in a typical dating relationship.
If you and your spouse have children together then this would not have a tremendous impact on how conservatorship rights and visitation time with your children are determined, all other things being equal. When it comes to dividing up these issues between you, your spouse, and your children there is not much of a distinction which is drawn between married persons and unmarried persons. At least in this regard, you should know that a common law marriage should not impact the division of conservatorship rights and duties as it pertains to your children when compared to being in a dating relationship.
However, there are significant differences when it comes to how people in a dating relationship end their association versus how people in a common-law marriage end their relationship. This is most true as it pertains to property division. In truth, this is where you are most likely to meet the greatest amount of opposition if you and your significant other disagree on the status of your relationship. If you find yourself in a position where you are trying to argue that a divorce is necessary to end your relationship with your significant other and he or she is arguing that no such divorce is needed, then this is likely a situation where you stand to gain something from a property division and a divorce and your significant other stands to lose something.
Ending a dating relationship means that there is no court-approved method of dividing property between you and your significant other. Even if the two of you have children and were to go through a child custody case, the court would not then look at how to divide the property in the home that you share. In the eyes of the law, you and your child's co-parent are the same as two roommates. If you and a roommate decided to live together no longer then it is not as if you would ask a judge to help divide your personal property, vehicles, or retirement accounts. Other than listing your significant other as a beneficiary under a retirement plan, the two of you would not have protections under the law as far as needing to divide those accounts between the two of you.
In a common law marriage, debts and property are subject to division just the same as they are in a ceremonial or formal marriage. When there is a disagreement between you and your significant other on whether there is a common law marriage or a dating relationship it is up to you to present evidence that can help us establish a common law marriage. The burden of proof, as we say in the legal community, is on you to establish that there is a common-law marriage rather than a dating relationship. The question you need to ask yourself is how you can most efficiently and effectively prove that you are in a common-law marriage rather than a dating relationship.
Some elements of a common law marriage are easier to prove in court than others. Thinking about the first element of a common law marriage, living together with your spouse means showing that the two of you share residency. This can be done with photos or videos of a housewarming party or other tangible evidence that the two of you live together. A mortgage in both of your names or the deed displaying both of your names would be solid starts to be able to prove that the two of you are cohabitating as husband and wife.
Next, probably the most difficult element to prove of the three when it comes to a common law marriage is showing that the two of you have a mutual intent to be married. If the two of you signed a marriage contract of whatever sort, then the difficulty goes away to an extent. However, absent something in writing you would need to show other evidence to a court to prove the existence of a common-law marriage. For example, showing an application for a name change to take on your husband's last name would tend to show that you are common law married rather than in a dating relationship. Another example could be your spouse changing the beneficiaries on his life insurance policy or retirement benefits to your name all on the same date or around the same time.
Finally, the last element that you would need to prove to establish a common law marriage is that the two of you are holding out to the community that you are both married. Having witnessed testimony to show that you introduce one another as your spouse is a relatively simple step to take to help establish the common law marriage that you hold out to be true. Other times, celebrating your common law marriage is not only a fun thing to do for your family but could be a way for you to be able to have evidence of this third element of a common law marriage for future legal purposes.
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “16 Steps to Help You Plan & Prepare for Your Texas Divorce”
If you want to know more about how to prepare, CLICK the button below to get your FREE E-book: “13 Dirty Tricks to Watch Out For in Your Texas Divorce, and How to Counter Them" Today!”
Other Articles you may be interested in:
- Does My Spouse Have Any Right To My House If I Owned It Before My Marriage in Texas?
- What are The Top 5 Questions To Ask a Marriage Counselor?
- What Questions Does a Marriage Counselor Ask?
- What Not To Say During Marriage Counseling
- What Do You Say During Marriage Counseling?
- What are Some of The Questions Asked During Marriage Counseling?
- How Can I Tell if My Marriage is Over?
- Can you turn an unhappy marriage into a happy marriage? Perspective from a Texas family attorney
- What is The 10 Year Marriage Rule For Social Security?
- What is The Success Rate of Marriage Counseling?
- What is The Main Goal of Marriage Counseling?
- The Detailed Definition of Marriage in Texas
- What Years are The Hardest in a Marriage?
- What are The Worst Stressors in a Marriage?
- What Breaks Up Most Marriages?
- How to determine whether a marriage can be saved
- Common Law Marriage and Texas Divorce Guide
- Common Law Marriages in Texas, Part Two