Do you know someone who likes to be surprised? I’m thinking of a person who likes scary movies and surprise birthday parties. This person runs the gamut of what excites him or her. Some of us even choose our occupation because of the level of surprise it offers daily. Working as a first responder offers a great deal of surprise to many individuals, for example.
One type of surprise that we do not like to think about is a surprise in our relationships. Being married is the opposite of a surprise in most situations. We know that we are married and act accordingly. However, what if I were to tell you that you were married when you had previously thought yourself to be single? How would you react? This is what we are going to discuss in today’s blog post from the Law Office of Bryan Fagan.
Namely, the idea that you can be married when you do not think that you are is a strange situation, to say the least. This does happen from time to time. Not because you could forget your wedding. That said, you may be common law married and not know it. Here is what it means to be common law married in Texas.
Common law marriage is an informal marriage
Being common law married means being informally married. An informal marriage does not involve a marriage ceremony. Marriage ceremonies range from those involving a wedding to those where you and your spouse marry at the courthouse. Either way, an informal marriage does not involve a pre-determined date when the marriage is said to have begun.
Rather, common law marriages begin when three events occur concurrently. The first of those events is an agreement to be married. This means that you and your spouse needed to have come to understand that your dating relationship was over and a new, marital relationship was beginning. Some people memorialize this agreement in writing. However, most common law married individuals do so under an informal, oral agreement.
The next event necessary to be common law married is cohabitation with your spouse. Living together as husband and wife is the name of the game here. By cohabitating we mean that neither of you can have a second “backup” home located elsewhere. Rather, you need to be able to push all your chips to the middle of the table. Moving in with your spouse is needed before your common-law marriage can become official.
Last, you and your spouse need to hold out to others that you are married. Introducing each other as your spouse. Going by “Mrs.” instead of “Ms.” Filing taxes as married persons rather than as single persons. These are hallmarks of holding yourselves out as married. There is no set way to hold yourself out as married. However, the general rule of thumb is that other people need to know that you are married. This cannot be a “secret” common-law marriage.
What is the difference between a common law marriage and a ceremonial marriage?
Common law marriage has a different title than a ceremonial marriage. Common law marriages begin differently than ceremonial marriages. The substance of a common law marriage is the same as a ceremonial marriage, however. Once you are common law married the same rights apply to you within the marriage as it would in a ceremonial marriage. There is no difference in this regard. This is important for several reasons.
Among the most important reasons is that because you are married you would then need to end the marriage (if necessary) the same way that spouses in a ceremonial marriage would. Divorce is the way to end a common-law marriage. There is no common law divorce, either. Even if you avoided the formality of a ceremonial wedding, you cannot avoid the formality of a divorce. When you get divorced that means issues regarding community property tend to creep into the picture.
The main difference between property division in a common-law marriage and ceremonial marriage is that people try and argue against common-law marriage. Since the origins of your common law marriage are somewhat murkier this gives people more of an opportunity to argue that the marriage never began. What does this look like in the real world? Let’s go through a hypothetical situation to better illustrate this point.
Arguing against a common law marriage
Let’s say that you are common law married to your long-time significant other. You and your husband have been married for five years. Neither of you was interested in a fancy marriage ceremony. So, you decided to go the route of a common-law marriage. Both of you agreed to be married. You’ve lived together for years so that requirement was already in place. Finally, you have done your best to hold out to others that you are married. Seemingly all the necessary boxes have been checked.
Now you find yourself in a situation where the marriage is not going well. Instead of trying to work together to solve the problem you all seem to be drifting further apart. What started as a small issue has now turned into something more substantial. It has become apparent that you all need a divorce. Because you came in and spoke to one of the attorneys with the Law Office of Bryan Fagan you know that you had to file for divorce.
However, your spouse came back and responded to your divorce petition with an answer that denied the two of you were ever married. Along with his answer, he is trying to deny a marriage ever existed. A motion for summary judgment soon followed. In other words, your husband is trying to argue that the two of you are not married. What would motivate him to make this kind of allegation?
Common law marriage means division of property
Texas is a community property state. This means that all property owned by you or your spouse at the time of your divorce is assumed to be community property. This is important because community property is subject to division in the divorce. The starting point, therefore, is all property in the divorce may be divided. This is a nerve-wracking situation for you to find yourself in as this spouse. The idea of having all your property divided in some way as a result of the divorce is intimidating. Think about all the different types of property you own.
However, the reality of the situation is that not all your property is likely community property. Rather, there are exceptions to this rule. Certain property you own would likely be classified as separate property. Separate property is property acquired before your marriage. Additionally, property acquired during the marriage either by gift or inheritance would be classified as separate property.
Proving that property is separately owned can take evidence in skill. Finding yourself in a divorce means that the importance of having an experienced family law attorney increases. An attorney can help you by assisting you in preparing your case and making legal arguments in court.
Preparing to divide property in a divorce
If you and your significant other are not married then ending your relationship is simple. One of you would tell the other that you no longer wish to be in a relationship. At that point, you would sort out your belongings and go your separate ways. Each one of us has probably been in this type of situation before. It is never fun to be in this position, but it is usually straightforward.
However, if you are married that is not how things work. First, there is no such thing as a legal separation in Texas. True enough, you can physically separate yourself from your spells in Texas. Nothing is stopping you from moving out and living apart from your spouse. That does not mean that you and your spouse are legally separated or divorced. Rather, it just means that the two of you are living apart from one another. You and your spouse are still married.
Even in a common law marriage, you need to get a divorce in the relationship. If you believe that you and your significant other are married that means a divorce petition should be filed. The divorce petition is the introductory filing for divorce. It includes your basic information, that of your spouse, and any children you may have. It also outlines your request for relief from the court. Basically, what do you want the court to give you in the divorce?
When your significant other says you are not married
What tends to happen in a scenario involving common law marriage is that your spouse may contest that you are married. He argues that the two of you were simply in a cohabitating, dating relationship. This is much more informal than a marriage. It carries with it none of the protections that go with marriage as far as property division. What type of people in relationships may find themselves in this type of position? Let’s examine that further right now.
People who own a great deal of property may want to convince a court that they are not common law married. Going back to our hypothetical situation involving you and your spouse, what if your spouse was a small business owner? His business success allowed him to purchase multiple homes, vehicles, and real estate properties. It would be in his financial interest to not have to potentially divide any of that property in your divorce case. As a result, it would not be completely out of the ordinary to see him contest that you were married.
What sort of position are you left in when your spouse contests the common law marriage? This is an unenviable circumstance to find yourself in. Not only is it emotionally disturbing to have your spouse contest that you were married but it is financially difficult. The protections of a marriage do not apply to an informal dating relationship. What you should or could have been protected under during a common law marriage would not apply if your spouse proved that you are not married.
Evidence is needed to prove a common-law marriage
Much like in a divorce where a spouse is attempting to prove a fault ground, you need to be prepared to prove your common law marriage. This takes evidence. You are not simply able to file a divorce petition and tell a judge that you are common law married. Rather, there needs to be a certain degree of evidence to show a judge that you are common law married. Additionally, the evidence is needed in all three areas that are necessary in Texas to be common law married.
Cohabitation is one of the necessary elements to prove a common-law marriage. You may think that this is an easy one. However, cohabitation is a slippery point to prove in a common-law marriage scenario. You and your significant other may have lived together in the same home for many years. However, you also need to think about what sort of counter-evidence your spouse can show in this scenario. Does he own a rental property? Has he stayed with his brother from time to time? What sort of witness testimony can you gather to show where people have seen the two of you living together and cohabitating?
An agreement to be married and holding out to the community that you are married
The final two elements of a common law marriage tend to go together. In very few circumstances common law marriages begin with a written agreement to be married. This is past the point where you and your spouse are now but if you are considering a common-law marriage it may well be worth your time to have something written in terms of a marriage agreement. This written agreement memorializes your circumstances together as married people. From that point forward, there is no question that an agreement to be married exists.
Otherwise, you find yourself in a circumstance where you and your spouse are offering competing evidence to show that you either did or did not agree to be married. Unfortunately, this can devolve into a he said, she said situation. Proving an agreement to be married is not always straightforward. It is a legitimate concern for courts that this element be proved. Many times, a well-meaning spouse will assume that the agreement to be married with mutual. At the same time, a well-meaning partner may be under no such state of mind. This is what makes a common law marriage difficult to prove in a courtroom setting.
Finally, holding out to the community that you were married may involve activities like introducing yourselves as the other spouse, filing taxes jointly, and other behaviors like this. Again, a comma non-marriage is not a secret marriage. Rather, a common law marriage is an informal marriage between two willing participants.
Final thoughts on common law marriage in Texas
The idea of being married and not knowing it is far from a joke. Rather, it is a legitimate scenario that Texans find themselves in every year. Going from a casual, dating relationship to a common-law marriage is not like changing your socks. It takes some degree of mindset change. Additionally, holding out to others and cohabitating requires action and commitment to a certain extent.
With that said, it is possible to be subject to the rules of divorce and not know it. The reason for this is that many people do not understand that even common-law married people must go through a divorce to end the relationship. There is no such thing as common law divorce or leaving a common law marriage informally. Rather, you must go through all the same steps in a divorce as a married person would.
Facing a surprise divorce?
What should you do if you find yourself facing a surprise divorce? First, ignoring the divorce petition is not wise. Even if you do not believe yourself to be common law married it is not a good idea to ignore a divorce petition. Rather, there are legal means to contest the divorce and to assert your case. Working with an experienced family law attorney is one of the best steps you can take to assert your rights and protect yourself.
Thank you for spending some time on the blog for the Law Office of Bryan Fagan. Our experienced family law attorneys work alongside clients in and out of the family courts of Texas every day. We put the interests of our clients first.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan 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. Before signing a document or negotiating on a subject you do not know well, contact our office. We look forward to the opportunity of serving you during an important part of your life. The Law Office of Bryan Fagan is on your side.
Evan Hochschild was raised in Houston, TX and graduated from Cypress Creek High School. He went on to graduate from Southwestern University in Georgetown, TX with an undergraduate degree in Political Science. While in college, Evan was a four-year letterman on the Cross Country team.
Following in the footsteps of his grandfather and uncle before him, Evan attended law school after he completed in his undergraduate studies. He graduated from St. Mary’s University School of Law and has practiced in a variety of areas in the law- including family law.
Mr. Hochschild is guided by principles which place the interests of clients first. Additionally, Evan seeks to provide information and support for his clients with the heart of a teacher.
Evan and his wife have four small children together. He enjoys afternoons out and about with his family, teaching Sunday school at his church and exercising. A veteran attorney of fourteen years, Mr. Hochschild excels in communicating complex ideas in family law simply and directly.
