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Common Law Marriage in Texas

The State of Texas is among those States that does recognize common law marriages. There is a legal standard that the relationship has to meet in order to be considered a common law marriage, however.

The Houston divorce attorneys with the Law Office of Bryan Fagan, PLLC have met with potential clients on many occasions where they were asked by a prospective client about this subject. You may be someone in a similar position to those prospective clients.

Maybe you’ve been served with divorce papers when you didn’t even think you were married in the first place. Where can you go from here? Read on to find out more about common law marriage and its status in Texas.

Walking through the legal requirements to have a valid common law marriage in Texas

Marriage seems, at first glance, to be a pretty cut and dry subject. Either you are, or you aren’t, married. Most folks don’t forget about a marriage ceremony and taking the vows associated with such a ceremony. Common law marriage is a much looser concept and is one that a couple can essentially fall into if they’re not paying attention.

In a consultation with a potential client, a woman asked one of our attorneys what it took to be common law married in Texas. The reason she was curious to find out was because she had just been served with divorce papers on the day before by a man she considered to be her live-in boyfriend.

Our attorney asked the woman if she and this man had lived together. She answered that yes, they had. Our attorney next asked the prospective client whether or not she and her “husband” had ever held each out as being married to another person.

Yes, was her response. Finally, she was asked if she agreed to be married to this man. To that question she said a resounding, “No”. What did this mean for the fate of the “marriage”?

The Texas Family Code contains the statutory requirements for being common law married in Texas. Common law marriage is known as an Informal Marriage in Texas, but we can consider this institution under the more familiar of the two terms. Section 2.401 of the Texas Family Code holds that a common law marriage is one in which no formal marriage ceremony was held, no marriage license was obtained and the parties had:

  1. agreed to be married
  2. live together in Texas as husband and wife
  3. hold themselves out to others in Texas as husband and wife

Let’s break down each of these requirements one by one.

Agree to be Married

At the top of the list of requirements to be considered common law married in Texas is the agreement between the parties that they be married. Practically speaking what this means is that the party alleging the common law marriage must present evidence to a Court that the parties intended to enter into a marriage relationship in an immediate sense.

It is not enough to show that the parties intended to be married at a future date or that the intent lasted only for a week. If the intention was to have a permanent marriage relationship and it was acted upon mutually then this requirement should be met in the eyes of the law in Texas.

Living Together as Married Persons

Next- did the parties live together in Texas as husband and wife? The statutes don’t get into detail in this section but case law (i.e. the laws that appellate judges create) has held that to meet this burden the parties must have demonstrated that they have maintained a household and did things that are common to marriage relationships.

This can mean having children. This can mean buying a piece of real estate and financing it in both of their names. This can also mean paying taxes under the married filing jointly designation. Last- there is no requirement that I could locate that states the parties must have lived in the same residence together for a minimal amount of time to qualify.

Holding Out to Others that the parties are married

Think back to elementary school. You may have been a “secret” boyfriend or girlfriend to someone on the playground at school where only you and the other person knew about it.

If we take that example and apply it to our discussion of common law marriage, we would learn that a common law marriage cannot be established by similar patterns of behavior. The parties to a common law marriage must have held themselves out to others as being married to each other. Actions or words are enough to establish this requirement.

Property and its effect on Common Law Marriage in Texas

One of the biggest reasons why one party may want to prove a common law marriage, and the other party may want to disprove a common law marriage, is in regard to a division of property. If a common law marriage is proved, then a divorce is necessary just as if the parties had been married by a judge or religious official.

This means their property is subject to the laws of community property. This means that whatever property or income came to be during the course of the common law marriage would stand to be divided in a just and equitable (read: 50/50) fashion upon the termination of the relationship.

What this means on a practical level is that the party who owns most of the property- bank accounts, real estate, etc. would most likely want to disprove a common law marriage so that they do not lose out on the property that they have accumulated during the course of the common law marriage. On the other hand, the party who stands to benefit from common law marriage designation would obviously push harder to establish a common law marriage.

Problem Solving Difficult Situations is where the Law Office of Bryan Fagan, PLLC excels

If you are looking for a family law office that offers superior customer service and a strong work ethic, look no further than the Houston divorce lawyers with the Law Office of Bryan Fagan, PLLC. Please contact us today to learn more about how we can assist you and your family with your legal questions.

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Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

A divorce lawyer in Spring TX is skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.


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