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 you wanted to get married unless you were under the influence of drugs or alcohol.
In a common-law marriage situation, there have to be conditions met 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 out of a common-law marriage situation by having one of those three requirements fall out of place. All three must be in place simultaneously 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 feel to be indicative of common-law marriage. These are not outlandish, random, or otherwise hard to imagine situations. I guess that you are likely to find that all of these are entirely possible for you and your significant other to experience on any given day. Whether or not you are common-law married would mean considering all of the requirements and deciding whether or not you are 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 common-law marriage. 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 of whether or not you are 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 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, there would be nothing to have your judge raise an eyebrow. However, if you are attempting to argue that you and your significant other are spouses through a common law marriage, then having proof of a married, filing a joint tax return could be pretty handy. It would be tough for your spouse to argue lack of knowledge or intent if his signature appears on the return.
On the other hand, if you want to avoid giving anyone the impression that you are common-law married to your partner, you should prevent entangling yourself with them via legal documents. Doing so could produce evidence that is both highly credible and difficult to dispute. While you may consider taking 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 for what you declare on life insurance policies and investment accounts.
Suppose you have a life insurance policy or an investment account in a 401(k) or Individual Retirement Account (IRA). In that case, 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 solid 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.
You shouldn't list a girl/boyfriend as a beneficiary under any of these 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 significant financial move because you are helping that person if 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 the 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 offer 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 the possibility that all will be found to be common law married as a result. If you purchase a house with your boyfriend, that may begin a drift towards common law marriage if nothing else.
You 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, you are setting yourself up for a hard case 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, you should 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 remember some, you need to ask you're significant other if they do. Yours would not be the first time a significant other opened up a loan in both of your names and listed you as their spouse 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 them with respect. How you treat that person can significantly impact your life when it comes to whether or not you will be considered a 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 terms for the 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 they continuously refer to you as their husband, you need to speak up if she is not your wife. If she does this enough over the next few years, then the odds are good that she has hundreds of folks who only know you like 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, 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 delay 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 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 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 whether or not this is a good thing- but it is something 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 where it is much more challenging to offer up arguments is living with each other. If you want to avoid any disputes regarding a common-law married, do not reside with that person. Do not allow her to leave clothes, personal items, etc., in your home. Please 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 you will stop by again tomorrow.