Do you want to know how to tell whether or not you are common law married in Texas? Your being married in this state isn’t based on a feeling that you may have or a certain period of time that you have lived with your significant other. Rather, there are three requirements that are in place under the Texas Family Code.
You must: 1) agree to be married, 2) live together as husband and wife and 3) represent to other people in Texas that you are husband and wife
If you can meet all three of these qualifications at the same time then you are considered to be common law married. That is not merely a "state of mind" or title that bears no importance. Being common law married in Texas means that you are married just like anyone you know you were married in a ceremony, exchanged rings and have the same last name.
Importantly, this all means that you cannot simply end your relationship by walking out the front door of your home. A divorce would be necessary. There is no such thing as a common law divorce in Texas. You and your spouse would go through a full-fledged divorce just like any other married couple. That means your community property estate will be divided up and orders concerning child custody, visitation and support will be instituted as well.
With all of that said, how can you tell if you are common law married? My advice would be to not rely upon what your cousin or co-worker tells you about common law marriage. Rather, let’s go through some common circumstances that should be able to tell you whether or not you are common law married in Texas.
Situations that will show a court that you are common law married
The follow circumstances and situations are ones where prior courts in Texas have found people just like you to be involved in a common law marriage.
An agreement to live together as husband and wife is about all you need to be common law married
The most obvious and downright necessary habit or situation that could cause a judge to believe that you are common law married to another person would be to agree to live together as husband and wife. This does not mean live together like you were husband and wife. This means to live together as husband and wife. To share the same roof, the share in household chores, etc. If this can be shown to a judge then circumstantially you are putting yourself in a position to be considered as common law spouses.
Does your mom call your girlfriend your wife when she isn’t?
Next, if your families refer to you and your spouse as husband and wife and treat you all this way as well that is another sign of a common law marriage. If your partner’s father is calling you his “son in law”, you are no longer in a boyfriend/girlfriend relationship. You have two options at this stage: you can either put a stop to that by confirming that you and your significant other are not married, or you cannot take any action. By not taking action you are essentially confirming the common law marriage. Do not be surprised that if you attempt to end the relationship with a simple conversation, your partner may argue that a divorce is necessary.
Never introduce your wife as such, unless she actually is your spouse (or want her to be)
The flip side to this would be if you and your spouse are introducing one another to other people as your husband or as your wife. There is really no way of dancing around it at that point. That is something that only married people do. Think back to any relationship that you have had in your past, even serious ones. Did you ever introduce your girlfriend as your wife? Even kiddingly? That would never happen. Be careful how far you take the language you are using in regard to your significant other. If you don’t want yours to be a common law marital relationship then do not give anyone the wrong idea that your girlfriend is actually your wife.
When signing up for a membership at the gym make sure to mind the titles you use
A silly way that some people fall into this trap without even opening their mouths is to sign up for a cooking class, YMCA membership or something as trivial as that using a “Mrs.” Designation or title instead of “Ms.” Have you ever signed in on a piece of paper or an invitation list as Mr. and Mrs. (insert your last name here)? What about RSVP’ing to a wedding as Mr. and Mrs.? These are all sort of silly examples, and yes, in isolation they don’t mean anything. However, if you are doing these sorts of things, have agreed to be married and are living under the same roof there is a strong argument that you are married.
Inviting people over for a barbecue? Watch what you say about your significant other
If you invite people into your home for a get-together and introduce your partner as your spouse, even if you do it just because it will make your partner happy, is a sure-fire way to exhibit that you are in a common law marriage. Again, I cannot emphasize enough for seemingly little, insignificant things like this can have huge effects on your life in the future. Think twice before doing anything that will give anyone the idea that you are married to your significant other.
Be careful writing a love note that displays more of a commitment than you are willing to show
When it comes to evidence that could be used in court to prove the existence of a common law marriage, I can’t think of anything better than notes or letters that you wrote to your spouse. In today’s world, text messages, emails and even messages on social media would suffice for these purposes.
Taking out a loan can potentially be used as evidence to show a common law marriage
Here is one that always seems to get people: taking out a loan with your significant other where you both listed as husband and wife. You may have been told that it is a good idea to apply for a mortgage as husband and wife. You'll get lower rates, people will tell you. Well, I am here to say that while I cannot speak to the interest rates, you will almost assuredly be signing yourself up for a common law marriage by doing so. Financial, tax and government paperwork are supposed to be filled out truthfully. Arguing against that at a future date just because you don't want to be considered as common law married Is not wise.
Don't allow the deed to your home to list you like someone's spouse unless you mean it
The same thing will apply to the deed for your home. If the deed to your home lists you and your significant other as husband and wife that was not a mistake. You both are listed that way because you held yourselves out to be spouses. If someone along the line got the wrong impression about you and your partner then you need to be able to set them straight before that mix-up could cause you big time problems in a family law court.
Be careful who you name as a beneficiary under an insurance policy or will
A lot of people are “playing house” nowadays. To me, this means that people are living together, having kids together and generally doing things that married people do without actually getting married. Part of that could mean that you and your significant other are taking out insurance policies and naming one another as beneficiaries. There is nothing wrong about this or illegal, or anything like that.
However, that is something that a married couple would do. It may be wiser to name your children as beneficiaries rather than your partner for this reason. Simply drafting a will where that money is placed in a trust for the kids until they reach adulthood can ease your mind if you are worried about handing over big chunks of money to minor children in the event that you were to pass away.
Taxes, Taxes, Taxes
Finally, if you file your income taxes as married filing jointly or as married filing separately then you will have a really tough time arguing against a common law marriage if you are also living together and doing other things married people do. Being untruthful on your taxes is a good way to wind up facing severe criminal penalties, so one would imagine you would go to great lengths, to tell the truth on your tax forms.
The flip side- you may not be common law married in Texas under the following circumstances
There needs to be a specific agreement between you and your partner for there to be a common law marriage. An understanding that you all will someday get married or would like to get married once you get out of debt is not good enough. Likewise, even if you proposed to your significant other and purchase a ring, absent the other qualifications needed for a common law marriage, this alone would not be enough to show a valid common law marriage is in place.
Next, consider if you sign a lease agreement or other document and show that you do not have a spouse or are single. This is a good way to indicate that you are not common law married even if there are other signs that you may be.
Finally, the cohabitation requirement for a common law marriage is often times difficult to meet for people. For instance, you could spend all day with a person but if you never consistently lived with him or her then there could be no common law marriage. If you have a separate home address than your significant other then there can be no common law marriage.
Once she puts her toothbrush in your bathroom that may be a sign that a common law marriage is on the horizon, however.
Concluding thoughts on common law marriage
Marriage is a good thing. Our society encourages people to be married through financial incentives and other motivators to commit to another person. Your own views on morality, family, religion and other topics aside, our culture has valued marriage throughout the years and continues to do so.
This is part of the reason why our state allows the same protections that are afforded to a married person to be present for persons who have not been formally married but nonetheless act as such. Being common law married is, in the end, the same as being married in a courthouse or in a church. It may not feel that way, but the law doesn’t mention anything about how the relationship feels. I hope that the past couple blog posts from our office have shown you how a common law marriage works and how to tell if you are involved in one.
Questions about common law marriage in Texas? Contact the Law Office of Bryan Fagan
If you have any questions about the material that we covered today or need clarification on anything else that you have read on our website 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. A consultation is a great opportunity to ask questions and receive honest feedback about your particular circumstances.
Our attorneys take a great deal of pride in being able to represent our neighbors in the community. As advocates for the families of southeast Texas, we appreciate your spending some time with us today and we hope to be able to serve alongside you and your family in the future.
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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 ar Spring, TX Divorce Lawyer right away to protect your rights.
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