A simple Google search will tell you that a lower percentage of people are living together that are married than at any point in American history since these sorts of statistics have been tracked. As a result, it is important for you and me to be able to understand how you can find yourself in what is called a common law marriage. The strange thing to realize is that you may be involved in a common law marriage and may not even know it.
Cohabitation prior to marriage, as the inverse of living together after marriages, is therefore on the upswing. Some folks engage in relationships like this and never give a second thought to not getting married. Whatever the causes and motivations for doing so, when something is occurring in a society like this it needs to be looked at in some detail. If you don't know whether you are in a simple relationship with your partner, or are actually in a common law marriage, you may be in for some surprises later in life.
Misconceptions about common law marriages
For as many people as there are out there who believe themselves to not be in common law marriages, there are as many people (if not more) that falsely believe themselves in a common law marriage. Let's walk through some of the things I have heard that help to make a common law marriage that is absolutely false.
Probably the most common, yet incorrect, characteristic of a common law marriage is that if you have been living together for six months or more with a person you are in a romantic relationship with that means you are also common law married. I don’t know if there is a movie or television show that has said something like this, but it is definitely a thought that many people share. Unfortunately (or fortunately, depending on how you want to look at it) this is a not a true belief.
Another similarly held belief, yet equally as false, is that if you move in with your partner/boyfriend/girlfriend that you are also agreeing to common law marry that person. The strange thing is that people out there think this and then never mention it to their partner. It sorta reminds me of back when we were in elementary school and you might have thought that the cute boy/girl in your class was your boyfriend/girlfriend, but that person had no idea. This is similar to that.
Sometimes if you are in a relationship for long enough, you may find that your significant other (if that significant other is a female) may start to use your last name to apply for loans or just in their day to day life. The thought of these folks, I’ve come to learn, is that if you believe that you are married to another person and start to use their name, marriage just automatically happens. That is not the case, either.
Perhaps the most common area where I have seen people falsely believe themselves to be in common law marriages when they are not is when people talk about getting married for seemingly a decade but never actually do. If you were to ask either person in that relationship, I bet they would tell you that while they may not be formally married, all those years of “planning” and talking about marriage constitute a common law marriage. This is also not an accurate thought to have.
Finally, we have the common assumption that because you and your significant other agreed to be common law married, that you can just as easily agree to be common law divorced. Easy in, easy out. Not so fast. Not only is there more to a common law marriage than simply agreeing to be married, but there is also more to a common law divorce, as well.
I don’t know if it’s something about being in Texas that we seem to develop a lot of beliefs that are not so much based in fact, but more so based on folklore and tall tales. Whatever the root cause of this trend, folks just seem to have a lot of mistaken beliefs on this subject. When it comes to matters of the heart as well as matters of the pocketbook this can be a recipe for disaster. Let’s try and eliminate some of those mistaken beliefs and restore some facts to this discussion, then.
What does it actually take to be in a common law marriage in Texas
Before we go any further, it makes sense to establish right off the bat what a common law marriage actually is in Texas. What does it take to actually be in a valid common law marriage?
The two people involved in the relationship but first agree to be married. That means that you and your partner must have had a conversation where you both consent to marrying the other person. There does not have to be a proposal or a ring, but there does have to be a mutual understanding between you and the other person that you two are now married.
Next, you need to live together as husband and wife. This doesn’t mean that you all can plan to live together or have two houses but spend the night frequently at the same house. You have to have one residence, used by both of you on a consistent basis. There should be no question about where you live and where your spouse lives.
Finally, and this is always the tricky one, you and your spouse have to represent to other people in Texas that you are husband and wife. Get-togethers with family and friends mean that you talk about your partner as your spouse and not your boyfriend. Co-workers need to think that you are living with your spouse and not a partner. So on and so forth. The words husband, wife and spouse need to be used a lot in order to meet this final hurdle.
The other thing is that all three of these elements need to be in place at the same time in order so that your common law marriage could be established. Two out of three isn’t good enough. Do that, and you are common law married in the eyes of the law.
What else must be in place?
Just so you weren’t under the impression that it was this easy to be common law married in Texas, there are a few other things that you need to be aware of. First of all, you must be able to prove that both you and your spouse had the capacity to enter into the common law marriage. Both of you must be over the age of 18, cannot be related to one another and cannot currently be married to another person. If you meet these qualifications you have what it takes to consent to be common law married.
Like everything else in Texas family law, the existence of a common law marriage is largely a fact-based determination. Each of the above circumstances will be viewed and the facts of each will determine whether or not you are common law married. Be prepared to present evidence in court in the event that you need to defend what you believe to be a common law marriage.
An agreement between you and your partner to be married
As I mentioned earlier, you and your partner/significant other have to agree to be married. It cannot be a plan to someday get married, or an unopposed consideration of marriage. Rather, you must both agree to be married right this instant. Your desire to be married must be permanent. You can’t agree to be married today and then move on from that desire next week.
Something in writing evidencing this desire is a good place to start, but if you don’t have that you will need to have your actions show the desires of your heart (now that’s the kind of poetry you won’t find in any other family law blog post). Ultimately you are setting yourself up to be able to prove a common law marriage if your partner attempts to challenge that there was ever that type of relationship in place.
What does it mean to cohabit with another person?
For your common law marriage to be valid in Texas, you and your spouse must reside together as husband and wife in Texas. Being intimate with another in the same house does not suffice for these purposes, there needs to be more than that. A household must be maintained together- shared bills, chores, meals, etc. The things that are done most commonly by husbands and wives must be displayed by you all. If you can fulfill this requirement in a week then you can be common law married. There is no length of time that the cohabitation must occur.
Telling other people that you are married (or showing them that you are married)
Representing to other people that you are married is the other qualification of common law marriage in Texas. You cannot be in a super-secret common law marriage with your partner/spouse. While you do not need to shout out your relationship from the rooftops, that is certainly one way to meet this qualification. Words and actions are a huge part of this one, so be careful how you act or do not act.
Is a common law marriage a big deal?
You may be asking yourself whether or not being in a common law marriage is that big of a deal. After all- you are going to live your life the way you best see fit and don’t really see it ever impacting another person outside you and your significant other. What’s the point of saying you are common law married or not?
Well, like a lot of things in life, being (or not being) in a common law marriage is not a big deal…until it is. A court would ultimately be the one to make a determination that you and your significant other were actually in a common law marriage. If you are found to be in a common law marriage, the only way to end that relationship would be to get a divorce. Filing for divorce carries with it significantly more consequences than simply moving out of the house with your bags packed.
As I mentioned earlier, a common law marriage may start with a handshake but it cannot end that way. A simple agreement to part ways may work in a dating relationship but in a common law marriage, you will have to go through the same process as us "regular" married people who were married in a church, synagogue, courthouse or a rich person's backyard.
All property and debts that you and your spouse accumulated during the course of your marriage are subject to division since Texas is a community property state. This can be a significant factor as to why you should take serious stock of whether or not you are in a relationship or in a common law marriage. Money consequences can be huge.
Questions about common law marriage? Join us again tomorrow
We will continue to discuss the subject of common law marriage in tomorrow's blog post. As I mentioned at the outset of the blog, a lot of people hold a lot of incorrect beliefs about common law marriage in Texas. Those incorrect beliefs can lead to a significant consequence for you and your significant other. Don't be caught flat-footed and without a clue as to when you are and when are not common law married.
In the meantime, if you have any questions about the material that we have covered today please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week here in our office. These consultations are a great opportunity to ask questions and receive honest feedback about your circumstances.
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