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Wondering if you’re common law married in Texas? Read this to find out if you are

I don’t have the numbers to prove it but I’m willing to bet you a Coke that fewer people are getting married the traditional ways. If you want to figure out why that is then you’ve come to the wrong place. We’re going to assume that this thesis statement is true and go from there to discuss the topic of common law marriage in Texas. Any of you out there who consider yourselves married but never went to a judge, priest or preacher to get married formally may actually be common law married and not even know it. We’re going to do our best to cover this topic today so that you have some knowledge to fall back on.

From my experience as a family law attorney, I can tell you that more people are also cohabitating before marriage. Moving in with your significant other and then living a life akin to marriage without putting a ring on the other person’s finger is commonplace. In other situations you may move in with a romantic partner and just never feel the need to get married. People do this, have kids, buy homes and live lives as basically roommates who have built a life together.

That isn’t what a common law marriage is but you may not have known that. Very few people have a good idea about what common law marriage means in Texas. There are a lot of urban legends, stories and guesses that exist in our culture about what common law marriage is. Unfortunately there is little in the way of truth or accuracy to any of those stories. My hope is that in today’s blog post I can share with you some reliable information about what common law marriage is and what it is not. 

The important thing for you to take away from today’s blog post is that it is essential that you know what your rights are so that you can protect them. There is a big difference between living with your significant other and living with a common law spouse. While it may not feel any different to you right now, if something happens in the relationship and you all decide to go your separate ways then you ought to now what that means for both your long term and short term futures. 

What a common law marriage is NOT

I think the best way that we can dispel some rumors or myths about common law marriage in Texas is for me to walk you through some things that I have heard people tell me about common law marriage that are not true. These are not ideas that are so far off base as to make you wonder how a person could think that they are accurate. What’s true is true and what’s close to true is false. I want to clear up some of these popular misconceptions today with you. 

Living with someone does not necessarily mean that you are also common law married 

First off, just because you are in a committed relationship with a person and live with him or her does not mean that you are in a common law marriage. Long time significant others who decide to take the plunge and move in does not alone constitute a valid common law marriage. I will point out that living together is an element of a common law marriage in Texas. However, that condition alone does not mean that you are in a common law marriage. We will be discussing more about that as we progress through this blog post but just know for now that just because you live with someone does not mean that you are necessarily common law married to that person. 

An engagement does not mean that you are common law married

Buying a pretty ring and slipping it on your lady’s finger does not mean that you are common law married or are agreeing to be common law married. See, common law marriage is, legally, on par with a ceremonial/traditional marriage. There are no gradations of marriage. A common law marriage is not a marriage with training wheels or a step below a traditional marriage. You will not transform your common law marriage into a ceremonial marriage like a caterpillar emerging from the cocoon into a butterfly. Getting engaged is no different than having a girlfriend. Until you tie the knot you living with a roommate, essentially. 

The same principle that we just finished applying also works in conjunction with agreeing to be married in the future. I’m sure that you’ve heard of people say that they are engaged to be engaged. This means that there is no formal engagement that has begun but that the couple has supposedly committed to remaining in a relationship together in anticipation of an engagement. You can play all sorts of gymnastics with the relationship that you are in, but the fact is that being engaged to be engaged does not mean that you are common law married. 

You need to agree with your significant other that you are common law married

Suppose that you and your girlfriend move in together after a fair bit of convincing from her. Now that you are living together things are working out fine but lately your girlfriend has been telling the neighbors and friends of hers that you all are married. She’s even introducing you at parties as her husband. This is all makes you a little uncomfortable. So uncomfortable, in fact, that you have gone up to these same people and told them that you all are not married. Not one bit. So, are you common law married because your girlfriend tells other people that you are?

The answer to that question is, no. I’m going to walk you through a little later what it means to be common law married. However, you need to know right now that you and your significant other need to agree to be married and to hold yourselves out as being married for a valid common law marriage to be in place. It takes two to tango, basically. If you refuse to assent to the common law marriage then no common law marriage shall be had. It doesn’t matter how much your girlfriend shouts from the rooftops that you all are married. Unless you back her up on that the law does not consider your relationship to be a common law marriage. 

What if you live together for a really long time like six months? Common law married?

There is no magic number as far as the length of time that you and your significant other need to be living together in order for you to be considered common law married. If all the elements of a common law marriage are met, you can be considered married after having lived with your spouse for less than a week. Likewise, you can live with a person for fifty years and if all the conditions of a common law marriage are not met then you will not be considered common law married. 

All that is to say that you can not create a common law marriage out of nothing more than an extended stay in their home. You’ll get yourself a roommate- and possibly a responsibility to pay half her rent- if you move in for an extended period of time. However, just because you made a decision to move in with her does not mean that you now are in a common law marriage. 

Keep an eye on your girlfriend to see if she uses your last name in any setting

If your girlfriend opens up a bank account and uses your last name in place of her own that is a warning sign that she may be attempting to establish a common law marriage. However, there must be other conditions in place other than merely her using your last name in order to evidence a common law marriage. If you all do not live together and you do not agree to be common law marriage then a common law marriage cannot exist by virtue of her using your last name, alone. What you may want to do in this situation is have a talk with her to see what her motivation was for using your last name. It may be benign, but I would want to check that situation out before you let it fester for too long. 

Keeping your common law marriage, a secret means that you are not common law married

If you and your significant other move in together, play house, share bills and agree to be common law married then you are almost to the point where you are common law married under the law. The part of the equation that you would be missing would be that you have not held out to the community that you are married. For instance, if your significant other does not feel comfortable telling others about your decision to be common law married then the final element of the marriage is not in place. No matter how bad you want to be married to this person, without the ability to tell others about your marriage a common law marriage cannot exist. 

Having kids with your live-in girlfriend means that you are common law married

This is a misconception that I have come to find out a lot of people hold. The idea is that if you live with your significant other and have a child with him or her then you are officially common law married. If having a kid with someone isn’t evidence of a committed relationship, I don’t know what is. Add on top of that the fact that you all live together and I can see why you may think that this situation all adds up to a valid common law marriage. 

However, these circumstances alone do not constitute a valid common law marriage. If they did, then I bet a lot of you reading this blog post would be common law married. As it stands today, you are not common law married just because you live with your significant other and have a child with that person. There is commitment to this living situation but the commitment does not rise to the level of being common law married. 

When you get common law married you can get divorced through an oral agreement 

Not so fast, my friend. Let’s say that you agree with your significant other to be married and all of the necessary conditions are in place for your common law marriage to be valid. You live together as common law spouses for five years. At that point, one or both of you decide to move on from the relationship. You move out of the home and are content to start your life anew. 

However, your significant other/common law spouse is telling you that you all need to get a divorce. It seems that she believes that the rental property that you purchased during your marriage is coming to mind as something that was purchased with income from your job and is titled in your name alone. As such, she wants to make sure that her rights to that property are protected. You disagree that you need to go through a divorce. A common law marriage isn’t REALLY a marriage is your point. 

The law would side with your common law spouse on this issue. Just because you were able to slide into your common law marriage does not mean you can slide out of it just as easily. Since your common law marriage was valid you will now need to file for divorce in order to end that marriage. Easy in, but not easy out.

What is a common law marriage? Read tomorrow’s blog post to find out

Now that we have covered in detail what a common law marriage is not, I would like to discuss with you what a common law marriage actually is. We will do that in tomorrow’s blog post. 

In the meantime, if you have any questions about the content of today’s blog 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. 


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