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What does it mean to be common law married in Texas?

In yesterday’s blog post from the Law Office of Bryan Fagan, we dispelled some rumors and misconceptions that I have heard in regard to common law marriages. It seems that are a number of falsehoods being discussed in our culture regarding common law marriage. Before you put yourself in a position where you believe that you are common law married when you really are not, I recommend that you read yesterday’s blog post to see if any of the myths that I went through apply to you and your situation. 

Once you have read yesterday’s blog post you are ready to read today’s. I will walk you through what it means to be common law married, including the three elements that must be present in every living situation for it to be counted as a valid common law marriage. If you have any questions about either blog post I would invite you to contact the Law Office of Bryan Fagan. Did you know that our licensed family law attorneys offer free of charge consultations six days a week? These consultations will allow you to ask questions about your specific situation and to receive direct feedback from one of our attorneys. 

What are the requirements of a common law marriage in Texas?

To be considered legally as being common law married, you and your significant other musts meet the following requirements:

  1. Agree to be married to one another
  2. Live together as husband in wife in the same residence
  3. Represent to other people in Texas that you are married as husband and wife (we will talk in detail what it means to represent to other people that you are common law married)

A common law marriage is not in place unless all three of the elements that I just listed are met simultaneously. That means that if all three elements are met for a period of six months and then one falls away you were only common law married for six months. If you always had some combination of two elements in place over the course of a decade but never had all three in place simultaneously then you were never common law married.

Even if all three of these elements were in place at one time, you must further meet the additional qualifications of being able to enter into a valid marriage, common law or not. You and your spouse must have been at least 18 years of age to be common law married, must not be related and cannot be married to another person at the time your common law marriage began. Once you can check all of these boxes then you are able to be in a common law marriage in Texas. 

As I’m sure you’ve gathered through reading yesterday’s blog post and today’s, the existence of a valid common law marriage depends heavily on the facts and circumstances of your life. If your significant other attempts to argue to a judge that you all are in a valid common law marriage and thus a divorce is needed to end the relationship, you will need to have evidence ready to dispute the existence of a marriage. 

What does an agreement to be married mean?

The first condition that must be present for your relationship to be a valid common law marriage in Texas is that you and your significant other must agree to be married to one another. That agreement must be a present agreement to be married, first and foremost. You and the other person must mutually agree that you are married right now and that it is your intent and desire to be married. You cannot agree to be married in four months. Your girlfriend cannot hold the desire for you all to be married while you reject the idea. You both must agree to be married right now for the first condition of a common law marriage to be met. 

Another key to being able to establish that this condition is met is having evidence of some kind at your disposal. Ultimately being able to prove the existence of a common law marriage is really only important when it comes to a court of law. You can tell your mom that you are married and her viewpoints may be important to you, but they hold no significance ultimately. It is a family court judge whose opinion really matters when it comes to determining the existence of a common law marriage. If you are called to prove the existence of the marriage then you need proof.

A written contract that you all are married as of the instant you sign the agreement is a good place to start. A clear and concise statement of your agreement to be married accompanied by your signatures is basically a marriage contract. If you all were to get married by a judge or a priest then you would need to have a marriage license to have a valid, civil marriage. In place of the marriage license you would need some sort of proof of your agreement to be marriage. Without something tangible I think you will have trouble proving the existence of your marriage. 

What does it mean to live together in a common law marriage?

You and your spouse must live together as husband and wife in order to be in a valid common law marriage. You all must have one place where you live and must consistently eat, sleep and live your lives in that home. It is not enough to be intimate with one another in that home and then have one of you leave to do the majority of your activities of living in another location. That home must be the residence of both you and your significant other. 

Think about what married people do and then do that in order to establish that you are cohabitating. Do you prepare meals together in that home? Do you raise children in that home? Do you have clothes, do laundry, share the responsibility for bills and the mortgage? Are the utilities in both of your names? Answer yourself these questions to determine if you are in a cohabitation situation. 

On the other hand, if you have an apartment that you keep just in case things “go south” in the relationship then this is pretty good proof that your intent is not to live together as husband and wife. If my wife found out that I was paying rent on an apartment, sort of as a backup plan if the marriage fails, she wouldn’t be too pleased with me. That rental contract is also going to be pretty good proof that you didn’t intend to be common law marriage and that you were not living together as husband and wife. 

What does it mean to be holding out to other people that you are married?

The final element of a valid common law marriage in Texas is that you and your spouse must represent to other people that you are married. Basically, you and your spouse cannot be secretly involved in a common law marriage. Actions speak louder than words in many areas of life and this one is no exception. You do not need to shout from the rooftops that you are married to your spouse. 

Buying a home, a vehicle, taking out loans together are all pretty clear signs that you are treating yourselves as married people. If your girlfriend starts to use your last name in official or unofficial capacities, then it is pretty clear that you all are holding out as married. Speaking it into existence isn’t a bad idea but your actions are even more important when it comes to a judge looking into your situation. 

Is it even important whether or not you are common law married?

All of this information is great, but it doesn’t really mean much unless you can understand why it is important to you. If being common law marriage holds no legal significance beyond calling yourselves husband and wife what difference does it really make in your lives? Well, as you are about to find out there are significant differences between being common law marriage and merely living together with your girlfriend of boyfriend. 

In the event that a family law court makes a ruling that your relationship is a common law marriage, then your marriage will be treated like any other marriage that began the traditional way. In order to end the marriage, most importantly, you would have to file for divorce and go through that process. Even though you may have innocently wandered into a common law marriage, you cannot wander out of a common law marriage. You have to end the marriage via a divorce. Property and debts that count as part of the community estate would need to be divided up between you and your spouse at the time of divorce.

What does this mean for you? For one, you should be wary of putting yourself in a common law marriage because it can cost you money, time and stress down the road. If you truly want to be married to your significant other and believe that this is the only relationship for you for the rest of your life- that’s great. Go ahead and get married. If you are ready to commit to this person then you should get married. Why not make it clear that you are married and go through a marriage ceremony? It doesn’t have to take long, doesn’t have to cost money and you otherwise don’t have to go through a lot of trouble. It will avoid any confusion about the legitimacy of your marriage down the road. 

Otherwise, if you do not want to risk having your relationship classified as a common law marriage, I would not put myself into a position where it is believed that you are married. Living together, holding yourself out as being married and agreeing to be married are the three conditions that must be present in order to be common law married. Whether or not those conditions were present in your relationship is different than if your “spouse” can prove them to a judge. A judge may view your circumstances differently than you do. It ultimately does not matter what your opinion is on the situation, either. If your significant other can prove the case that you are common law married, then the actual state of the relationship is not relevant. 

What are some situations that can help a judge believe that you are common law married to your significant other?

Again, if you do not go through with a formal marriage ceremony there is no sure-fire way to show a judge that you are common law married. So, if you are concerned about this you should speak to your partner and then work towards getting married in a church or courthouse. This way there will not be any doubt as to whether or not you are married to this person. If this isn’t possible and you can’t talk the other person into going through with a traditional marriage ceremony, your option would be to go to court and present evidence of a common law marriage being in place. We will discuss with you tomorrow in our blog post what situations are hallmarks of a common law marriage. 

In the meantime, if you have any questions about the material that was shared with you 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 direct feedback about your case and your life. We hope that the information we shared with you today has been helpful. Going through a difficult situation in relation to family law matters is never easy, but having trustworthy representation behind you can help your cause a great deal. 


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