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What living arrangements may lead a judge to conclude that you are common law married?

Common law marriages are equivalent to a ceremonial marriage in all aspects except how they begin and how they are maintained. If you go to the courthouse and get married then there is no doubt that you are married. You have a marriage license, you physically went through a marriage ceremony and unless you were under the influence of drugs of alcohol you wanted to get married. 

In a common law marriage situation there have to be conditions met in order to be considered married. Living together with the intent to be married and holding out to the community that you are married are the basic requirements. You can slip into and slip out of a common law marriage situation by virtue of having one of those three requirements fall out of place. All three must be in place simultaneously in order for yours to be a valid, common law marriage. 

Assuming that you and your spouse had the intent to live together as married persons, I wanted to share some situations that I believe most family court judges in Texas would believe to be indicative of a common law marriage. These are not outlandish, random or otherwise hard to imagine situations. I imagine that you are likely to find that all of these are quite possible for you and your significant other to experience on any given day. Whether or not you are common law married would mean taking into consideration all of the requirements and making a determination as to whether or not you are actually married.

How you all decide to file your taxes could impact whether you are found to be married

Do you have a long term partner/significant other with whom you have lived for many years? IF so, that is the beginning of a common law marriage. Obviously you need to agree to be married and then hold yourselves out to the community at large as being married, but living together with a significant other is a good start. What you do after that will ultimately tell the tale as to whether or not you are actually married under the common law in Texas.

A judge would look to see if you and your spouse have done something together, like a married couple would, that would indicate an intent to be married. Living under the same roof and being intimate with one another is not equal to living under the same roof and engaging in activities that are akin to what married people do. Filing taxes together is one way that comes to my mind that could signal to a judge that you all agree to be married and are doing your best to make that known. 

If you file separate tax returns from your significant other then there would be nothing to have your judge raise an eyebrow at. However, if you are attempting to argue that you and your significant other are actually spouses through a common law marriage then having proof of a married, filing jointly tax return could be quite handy. It would be tough for your spouse to argue lack of knowledge or lack of intent if his signature appears on the return. 

On the other hand, if you are wanting to avoid giving anyone the impression that you are common law married to your partner, you should avoid entangling yourself with him or her via legal documents. Doing so could produce evidence that is both highly credible and difficult to dispute. While you may consider taking an action like filing a tax return together to be a good financial decision in the short term, it could end up harming you in the long run depending on whether or not your intent is to be married to your joint filer. 

Watch out what you declare on life insurance policies and investment accounts

If you have a life insurance policy or an investment account in a 401(k) or Individual Retirement Account (IRA) then you need to be aware that who you list as a beneficiary under either account or policy could have a significant impact on whether or not you are found to be common law married.

For instance, if you have a life insurance policy that names your significant other as the beneficiary then that would be a strong indicator to a family court judge that you are common law married. That assumes, however, that the other elements of a common law marriage are in place. 

It is best for you to not list a girl/boyfriend as a beneficiary under any of these type of policies/accounts. I am not telling you who should be listed, but there is usually a person in your life who can be listed as a beneficiary who will not put you in jeopardy in other areas of your life. Many people think that doing so is a great financial move because you are helping that person in the event that you were to pass away. However, that leaves you susceptible to being found to be common law married. The financial impact of that designation may outweigh the benefit of the life insurance policy or financial account. 

Before you purchase a home with your significant other, consider this

Suppose that you and your boyfriend have been living together for five years in the same apartment. You are both getting tired of renting and make a plan to pool your money to put down on a house to purchase. The idea of owning something and building equity in it appeals to you a lot more than continuing to “throw away” money on rent each month. With that, you contact a realtor, look at houses and decide to make an offer on one that you especially like. 

Here is where you need to think seriously about whether or not you want to be married to your boyfriend. If you and he decide to deed the house in a way where you are listed as husband and wife then that decision carries with it the possibility that all will be found to be common law married as a result. If you are purchasing a house with your boyfriend then that may begin a drift towards common law marriage if nothing else. 

You really need to be aware of the consequences of your actions when it comes to buying a house together. That is a very “married persons” activity. It wouldn’t take much to drift towards an agreement to be married after that. Since you’re already living together then you are setting yourself up for a hard case to make if you subsequently want to argue that you are not common law married. Avoiding a situation like this starts with not living with your significant other, and most certainly not buying a house with him. 

If you are taking out a mortgage then you should be certain to point out that you are not married. Be careful to check your credit report periodically to make sure that you recognize any credit accounts where you are listed as a borrower. If you do not recognize some you need to ask your significant other if he or she does. Yours would not be the first time that a significant other opened up a loan in both of your names and listed you as their spouse in order to be loaned money or offered a more attractive interest rate. 

Be careful how you refer to and treat your significant other

By this, I don’t mean that you shouldn’t love that person or treat him/her with respect. What I do mean is that how you treat that person can have a significant impact on your life when it comes to whether or not you will be considered to be common law married. 

For instance, if your significant other can produce evidence in writing that you referred to her multiple times as your wife/spouse/other equivalent term for spouse then you are going to have a hard time arguing that you are not holding yourself out as being married and also in agreement that you are married to that person. It is one thing to swear to the judge that you would tell friends that you all were married. It is quite another to have a photo album introduced into the record which shows that you referred to one another as “man and wife.”

The same can be said for how you introduce one another to friends and co-workers. If your significant other has a work function where he or she continuously refers to you as their husband, then you need to speak up if she is not your wife. If she does this enough times over the next few years then the odds are good that she has hundreds of folks that only know you as that lady’s husband. 

Now, you may be saying that just because you never spoke up against that sort of designation does not mean that you agree with it. That may very well be true. However, the fact that you never said anything against it means that there is a degree of uncertainty surrounding the whole conversation. Your speaking up for yourself could have removed any uncertainty and made it impossible for her to argue that you were ever in agreement to be married. 

Family members can sometimes come out of the woodwork to support a person’s contention that you all are common law spouses. That third-cousin from the family reunion who you don’t remember may be listed as a witness on your partner’s witness list in the lawsuit to determine whether or not you were common law married. It would behoove you to remove all doubt regarding the nature of your relationship and just state clearly that you are not married to this person at any point in time where you believe there may be some doubt. 

Don’t play house- unless you want to be married

This one sort of relates to earlier points I was making about moving in with a significant other. The fact is that almost as many people today reside with a significant other than reside with a spouse. I’m not going to speculate as to whether or not this is a good thing- but it is a thing that you need to be aware of. If you can present yourself as a person who never intended to be married to a partner and never held yourself out as married, that is all good and well. However, you shouldn’t be surprised at this point to know that these are areas where counter-testimony can be offered that may cause the judge to doubt your assertions. 

One area that it is much more difficult to offer up arguments is in relation to living with each other. If you want to avoid any arguments regarding a common law married, simply do not reside with that person. Do not allow her to leave clothes, personal items, etc. in your home. Do not make it a habit to spend weeks at her house rather than at your house. The more of a connection you have to where she lives the greater the likelihood that all the factors come together and you find yourself in a common law marriage. Playing house isn’t the worst thing in the world but it can quickly lead to a common law marriage allegation. Do so at your own risk

Questions about common law marriage? Contact the Law Office of Bryan Fagan 

If you have any questions about the information contained in this blog post 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 where we can answer your questions and address your concerns directly. Thank you for choosing to spend part of your day with us here and we hope that you will stop by again tomorrow. 


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