- be two adults who consent to be married
- live together in the state of Texas as spouses after the agreement to be married has been reached and
- to hold out to other people in the community that you are married persons.
Let’s begin today’s blog post with a discussion of how prior courts have found persons to have held out to others that they are married.
Simply telling someone every so often that you and your spouse are married will not suffice. Consistently making comments to neighbors and people in your community that you both are married to one another is a good way to show that you are married. If you introduce yourselves repeatedly that you are married at every opportunity that, too, will go a long way to showing that you are married.
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 he or she uses may not be exactly the same as what another judge would use given the same facts and circumstances. In common law marriage, you and your spouse must “perform” as married people once you have agreed to be married to one another.
The reason this is so essential is that where there is no formal marriage ceremony or certificate, your only proof of the marriage is how you act towards one another in public and in your community.
In the event that you do not want to meet the three qualifications and be considered as common law spouses in the eyes of the law, you should take caution to prevent there from being any misunderstanding.
A fairly straightforward way to do this would be to enter into an “anti” marriage contract whereby you and the person you are residing with entering 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 that a valid common law marriage to be in place even in the event that the anti-marriage contract was signed by each of you.
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 to be effective upon marriage. Property refers to an interest, present or future, legal or equitable, vested or contingent, in real or personal property including income and earnings.
Obviously, if your relationship is not considered by a court to be a common law marriage then the premarital agreement is not valid and holds no legal importance for you or your partner. As we stated before it is a back-up to your backup plan to simply enter into a contract with your partner agreeing to never be married at any point in time.
Benefits to a cohabitation agreement
We’ve already stated that without one of these cohabitation agreements that you run the risk of being found to be in a valid common law marriage even if that was not your intent.
As Texas is a community property state you risk losing assets and property if your relationship were to end and your partner were to attempt 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 which 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 prior to engaging in negotiations
For any premarital document or agreement to be considered valid, a judge must rule that both sides to the agreement were represented, or had the opportunity to be represented, by an attorney.
This shows the judge that both parties were advised of their rights and entered into the agreement with full knowledge of those rights and duties. Your 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.
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 do not hesitate to contact the Law Office of Bryan Fagan, PLLC today. One of our licensed family law attorneys is only a phone call away and 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.
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Other Articles you may be interested in:
- Common Law Marriage in Texas
- Is a Common Law Marriage Just as Good as a Ceremonial Marriage?
- Common Law Marriage: How to avoid being or getting married without your intent
- 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
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.
Our divorce lawyers in Houston TX are 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 Houston, Texas, Cypress, 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.