In our recent blog post, we delved into the complexities of common law marriages in Texas. We outlined the three essential qualifications required for legal recognition, including the declaration of informal marriage. Yet, common law unions often prompt numerous questions and scenarios. Among these is the inquiry, “Is it possible to change your last name with a common law marriage in Texas?”
To provide a comprehensive understanding of this unique marital arrangement, we’ll revisit the three qualifications specifically. Furthermore, we will address common misconceptions, the name-change aspect, and other essential considerations surrounding common law marriages in Texas.
Common Law Marriage Requirements
In brief, the three essential requirements for a common law marriage to be recognized as valid entail:
- Both individuals must be consenting adults.
- They must reside together in the state of Texas as a married couple after mutually agreeing to be married.
- They must present themselves as a married couple to the community.
Simply telling someone every so often that you and your spouse are married will not suffice. There must be some declaration of informal marriage. Now, let’s delve into today’s blog post. We’ll explore past court rulings that establish how individuals have held themselves out as married to others.
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 means present or future, vested or contingent interest in real or personal property, including income and earnings.
If your relationship isn’t legally recognized as a common-law marriage in Texas, the premarital agreement has no legal significance. Moreover, if you’re wondering, “Can you change your last name with common law marriage in Texas?” it’s essential to note that common-law marriages won’t typically affect your last name. As mentioned earlier, having a contract with your partner to never marry is an additional precautionary measure.
Benefits of 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. It could be considered declaration of your informal marriage.
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
A judge must rule that both sides were represented or had the opportunity to be represented by an attorney. This is needed to validate any premarital document or agreement.
This shows the judge that both parties were advised of their rights. It means they 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.
Conclusion
Our exploration of common law marriages in Texas has revealed the significance of meeting specific qualifications for legal recognition, such as the declaration of informal marriage. However, the complexities surrounding common law unions extend beyond mere qualification criteria, raising various questions and scenarios. Among these inquiries is the possibility of changing one’s last name with a common law marriage in Texas. By addressing such questions and understanding the nuances of common law relationships, individuals can navigate their legal rights and responsibilities more effectively within the context of Texas law.
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 contact the Law Office of Bryan Fagan, PLLC, today. One of our licensed family law attorneys is only a phone call away. We 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.
Ebook
![Adobe Stock 62844981[2]](/?seraph_accel_gci=wp-content%2Fuploads%2F2023%2F09%2FAdobeStock_628449812.jpeg&n=ZoLGz1rB9EpXzbEKYFZug)
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“
![Divorce Wasting Assets[4]](/?seraph_accel_gci=wp-content%2Fuploads%2F2023%2F09%2FDivorce-wasting-assets4.jpeg&n=sXY6yiEXD50JDzE8l8yrtA)
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:
- What Does Common Law Mean in a Divorce?
- Dangers of Common Law Marriage with Estate Planning
- How Do I Separate From My Common Law Partner?
- Frequently Asked Questions Regarding Common Law Marriage and Divorce
- Frequently Asked Questions Regarding Texas Marriage
- Non-Marital Conjugal Cohabitation Agreements for the Unmarried Couple in Texas
- Common-Law Marriage and Texas Divorce Guide
- How to get a Common Law Divorce in Spring, Texas
- Am I Married? – Marital Status in Texas
- Can I sue my spouse’s mistress in Texas?
- Common Questions about Texas Prenuptial and Marital Agreements
- What living arrangements may lead a judge to conclude that you are common law married?
Frequently Asked Questions
An official marriage license is a legal document obtained through a formal application process, while an informal marriage, often referred to as a common law marriage, is based on the mutual agreement and actions of a couple, without a formal license or ceremony.
In Texas, there are two types of marriage: formal marriage, which requires a marriage license and ceremony, and informal marriage (common law marriage), which is based on the agreement to be married and living together as spouses without a formal license or ceremony.
Texas offers various types of marriage licenses, including the standard marriage license for formal ceremonies, the informal marriage license for common law marriages, and the proxy marriage license in specific situations where one party cannot be present at the ceremony.
The cost of a declaration of informal marriage varies by county in Texas. It typically ranges from $30 to $60. It’s essential to check with the local county clerk’s office for the exact fee in your area.
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.
