Common Law Marriage – Texas Requirements Explained

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by | Nov 11, 2021

When it comes to common law marriage, it isn’t as common as you might think. In fact, fewer than a dozen states recognize common-law marriage. Of those states that do recognize common law marriages, the requirements can vary wildly from state to state. These inconsistencies can make it difficult for people to understand what is required for a common law marriage and what it means for them in the long run. Texas is one of the few states that recognizes common law marriages in the United States. But what are common law marriages, how do they work, and what do they mean in the event of a divorce? Find out the answers to these questions and more.

What is Common Law Marriage in Texas?

Common law marriage goes by many names. It’s often also called informal marriage, marriage without formalities, and de facto marriages. All of these terms refer to a union in which two consenting adults become an official couple without having to go through the process of getting a marriage license and having a marriage ceremony.

It has become more commonplace over the years for couples to live together before getting legally married. But what’s the difference between cohabitating and common law marriage? Today we’ll focus on some of the most common questions regarding common law marriage in Texas such as:

  • Requirements for common law marriage in Texas
  • How does common law marriage work in Texas?
  • How to file common law marriage in Texas
  • What happens during common law divorce in Texas?

As with any legal issue, before you enter into a common law marriage or divorce from a common law marriage in Texas, consult with either a law firm with a focus on family law, a family law attorney, or a divorce attorney for legal advice regarding your unique situation. A family law or divorce lawyer will help ensure your best interests and legal rights are protected.

The Texas Family Code states that a common law marriage must have these elements:

  • The couple agrees to be married
  • The couple agrees to live together as husband and wife
  • The couple represents themselves as a married couple to others

These vital elements must be agreed upon in order for a common law marriage to take place. Aside from these important elements, both parties must have the legal capacity to enter into a marriage agreement. This means that they are both:

  • At least 18 years of age
  • Not related to one another
  • Not married to anyone else

Courts review each scenario on a case-by-case basis to determine if there’s enough factual evidence to determine that the union is in fact a common law marriage in Texas.

Entering into a Common Law Marriage in Texas

Now we’ll take a deeper look at what each of the required elements means in greater detail. The first element is that the couple has agreed to be married. Simply agreeing to marry at some point in the future does not fulfill this requirement. Written agreements can be used but are not required. In cases where there is no written document, the court reviews the actions of each “spouse” combined with evidence showing that the couple intends to have a present, immediate, and permanent marital relationship.

The next element is that the couple agrees to live together as husband and wife. For the purposes of a Texas common law marriage, this means more than having sexual relations under the same roof. According to the Texas Family Code, the couple would need to cohabitate and maintain the household as any typical married couple would do. In the state of Texas, there is no specific number of years that a couple must live together in order to be considered for a common law marriage.

The final element is that the couple presents themselves as a married couple to other people. This means that the couple in question refers to themselves as being married to other people. It also covers actions that married couples commonly participate in, such as signing legally binding documents together including mortgages, vehicle loans, personal credit applications, etc.

Declaration of Informal Marriage

If you and your partner meet all of the requirements above, then to make your marriage official, all you need to do is sign a Declaration of Informal Marriage with the county clerk. Once signed, this becomes your valid proof of marriage for any legal purposes. This document is important as it can play a vital role in the event of divorce or inheritance.

Common Law Marriage for the Same Sex Couple

Same-sex couples can also enter into a common law marriage in Texas. To do so, they would simply follow the same steps above. The beginning of a same-sex common law marriage can pre-date the 2015 Obergefell decision. This is important for couples when it comes to determining community property, pensions, Social Security, and other benefits. When applying for the informal marriage license, they would use the date applicable to their relationship.

The Biggest Misconception for Common Law Marriage in Texas

The biggest misconception when it comes to common law marriage in the state of Texas is that people assume living together for a period of time automatically means they are in a common law marriage. However, this is not true. No matter how much time passes, six months or ten years, there is no way to automatically enter a common law marriage without following the steps above. Couples must meet all three requirements simultaneously to establish a valid common law marriage in Texas. Both parties also need to sign a Declaration of Informal Marriage to ensure the involved parties receive the same rights as traditionally married couples.

Ending a Common Law Marriage in Texas

If you are common law married in Texas, then in order to end the arrangement you must have a Texas divorce. This is because common-law marriages have the same legal status as a formal marriage. Therefore, to legally leave a common law marriage one must still get divorced. The only difference between ending a common law marriage in comparison to a formal marriage, is that the common-law couples must prove to the court that they were in a common law marriage. Typically, this typically falls on the shoulders of the partner who initiated the divorce.

Grounds for Divorce in Texas

There are several reasons why couples get divorced in Texas. Some of these include no-fault splits, where a divorce can be granted without having to prove that either of the spouses was at fault. If either spouse has been confined in a state or private mental institution for at least three years due to a mental disorder, then this could be grounds for divorce. If one spouse is verbally, mentally, or physically cruel to the point of making cohabitation not possible then a couple may seek divorce. Adultery is another common cause of divorce, but the accusing spouse must prove the adultery in court. Other grounds for divorce include if either spouse has been convicted of a felony and sentenced to serve at least one year in prison, if one spouse has intentionally abandoned the other for a year or more, or if the couple has not cohabitated for at least three years.

Common Law Divorce in Texas

When it comes to ending a common law marriage, the Declaration of Informal Marriage is not required. If one of the involved parties can prove that the couple met all three requirements required of an informal marriage, then the courts may consider community property during the divorce. For example, if the couple wore rings on ring fingers, filed taxes together, and lived as though they were married, then the court may view the relationship as a common law marriage.

The term “common law divorce” is misleading as there’s technically no such thing as a common law divorce. Once the state recognizes a common law marriage, then the couple would need to get a regular divorce just like traditionally married couples. This means they will need to follow the typical divorce procedures and timeline that any other married couple seeking divorce would need to follow.

In the event of a divorce, it is helpful to work with a law firm or a family law attorney who has experience with common law marriages and divorce to ensure your rights are properly looked after and protected. A divorce will still cover things such as community property, custody and child support for any minor children, and even alimony if applicable.

One important fact to note, if the couple doesn’t file a pleading with the court to establish the informal marriage within two years of separating, it is possible that Texas courts may find that the informal marriage was void. This is why it’s important to speak with a family law attorney sooner than later after a split.

Why Enter a Common Law Marriage?

Even though you may be in love now and could never imagine anything separating you from your partner, it is possible that your relationship may not last forever. There are dozens of reasons why relationships end and it’s important to protect your rights and assets every step of the way.

The same holds true for both traditional and informal marriages. Losing your relationship is difficult enough, the last thing anyone wants is to lose everything they’ve worked so hard for over the course of the marriage. This includes any long-term estate planning you’ve done, child custody, property division, and much more. This is where an experienced divorce attorney comes into play. They will work with you to help ensure your rights and wishes are as protected as possible.

In fact, any time you’re thinking of ending a domestic partnership, legal marriage, civil union, same-sex marriage, common law marriage, or even if you’re an unmarried couple with children it’s a good idea to consult an attorney. An experienced attorney will be familiar with the law in Texas regarding each of these scenarios. They’ll also be able to apply Texas law to your specific case in an effort to protect you and your children.

The next time you have questions about common law marriage Texas requirements for entering or leaving a common law marriage, or questions about marriage laws in general, reach out to a qualified family law lawyer. An attorney will also be able to help you with any child custody or child support questions or concerns. They’ll also be able to offer their guidance and expertise if there are any other non-typical questions or concerns regarding entering or leaving a common-law marriage.