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What Is A Common Law Marriage In Texas?

Marriage is a legally recognized union between two people. Traditional marriage usually involves a ceremony, either civil or religious, and obtaining a marriage license from the county clerk’s office. With this license, married couples form a legal union that affords them certain rights and privileges, such as tax benefits and inheritance rights.

However, there is another type of marriage that can afford couples the same rights and privileges, without the requirement of going through the formal process. Informal marriage, or common law marriage, is recognized by the state of Texas as a legal marriage. Couples can have their marriage recognized under the law without a ceremony or a license.

At Skillern Firm, we have a team of highly experienced family law attorneys that can help you understand Texas common law marriage requirements. Our diverse team of lawyers has been helping clients within the state for many years, and we have a strong understanding of the Texas Family Code.

Understanding the complexities of family law can be challenging, and hiring an experienced attorney can make this process a lot easier. Three of the attorneys at Skillern Firm are Board Certified in Family Law by the Texas Board of Legal Specialization, which is a recognition given to just 1% of family law attorneys.

Call us today to arrange an initial consultation at 936-213-8479.

Common Law Marriage Explained

Common law marriage, also referred to as an informal marriage, is the recognition between two spouses that they are married, without having to go through the legal process of getting married. Often, couples live together for a long time, act as a married couple, and recognize themselves as being married, yet do not have a ceremonial marriage and get a marriage license.

When these couples decide to divorce or want to determine inheritance rights, they can still benefit from the rights of married couples by proving that they were married. The first way to do this is by satisfying the three elements set out under Texas Family Code Section 2.401.

Couples can also get an informal marriage form, or a Declaration of Informal Marriage, from the county clerk, co-sign it, and use this as valid proof of marriage. A Declaration of Informal Marriage is proof that the couple is in a common law marriage, without the need for a ceremony or formal marriage.

Requirements For Common Law Marriage in Texas

It is not possible for all couples that live together to claim they are in a common law marriage. For common law marriages to work effectively, there are certain legal requirements that must be met before the marriage can be recognized. Without these requirements, it would be difficult to prove your marriage and claim inheritance or property rights with your spouse.

Agree To Be Married

The first requirement is that both you and your spouse have agreed to be married. A marriage agreement is a recognition between you and your spouse, through either a written, verbal, or inferred agreement.

In most situations, couples do not have a written agreement of marriage if they are not legally married. Therefore, you will need to prove that you have a clear agreement between you that a marriage exists, without having an actual license.

Live Together

The second requirement is that you and your spouse must be living together. There is no minimum amount of time that couples must be living together to qualify for a common law marriage in Texas. Provided you are living together and agree that you are a married couple, the cohabitation time period is immaterial to your case.

Represented as Being a Married Couple

The third and final requirement to prove a Texas common law marriage is that the couple presents themselves as being a married couple. For example, if you revealed to your family members and friends that you have been married, and all the people in your life understood your relationship to be a marriage, this would amount to representation as a married couple.

Other examples of this representation could include wearing wedding rings, introducing each other as spouses, and filing joint tax returns. The courts in Texas handle each common law marriage on a case-by-case basis. Whether you have a valid informal marriage will depend on the facts of your case and the evidence you can present.

How To Prove Common Law Marriage Exists

As there are three elements to proving a common law marriage in Texas, couples must prove all three of these elements. There is no objective approach toward common law marriages, and the court deals with these marriages on a case-by-case basis.

Both parties agreeing to be married and presenting yourselves as a married couple can be proven using similar evidence. This evidence could include using your partner’s last name, filing joint tax returns, making joint purchases, including your partner on your life insurance policy, listing your partner as your spouse on public documents, having a verbal agreement that you are married, wearing rings on your ring fingers, and having children together.

If you can bring forward witnesses that understood you were married, such as family members, colleagues, and friends, this can be beneficial to your case.

To prove that you lived together since you were married, you can provide witness testimony, mail received by each party at the same address, and photo evidence showing that you have lived together since agreeing to be married.

Common Law Divorce in Texas

There is no such thing as common law divorce in Texas. Sometimes, couples think that by avoiding a formal marriage process but recognizing their relationship as an informal marriage, they can avoid the divorce process. However, this is not the case. In fact, a common law marriage is treated the same as a formal marriage under Texas family law.

This means that if you are common law married, and you want to divorce your spouse, you will be subject to the same rules and regulations that govern standard divorce proceedings. These regulations govern the division of marital property, spousal support, child custody, and more.

However, if you have not applied for a Declaration of Informal Marriage and want to pursue a divorce, it is important to act fast. If you do not take measures to prove the marriage existed within the two years after you and your spouse separated, it will be difficult to get a divorce. We recommend contacting an experienced family lawyer who can help you with the divorce process for an informal marriage.

Does the Law Recognize Common Law Marriage For Same-Sex Couples?

The United States Supreme Court case of Obergefell v. Hodges in 2015 recognized the rights of same-sex couples to get married and thus legalized same-sex marriage throughout the country. The Respect for Marriage Act, introduced by the United States Congress in 2022, provided further protections to same-sex couples, for both legal marriage and common law marriage.

Because of this, same-sex couples can also get their marriage recognized as a common law marriage by going through the standard process. If you are a same-sex couple, have agreed that you are a married couple, have lived together since the agreement of marriage, and have represented yourselves as being married, you can qualify for a common law marriage under Texas law.

What is a Common Law Marriage in Texas? FAQs

Do community property laws apply to a common law marriage?

Yes. If a common law marriage existed, and one party files for divorce, community property laws will apply to the marriage. Any property you and your common law spouse acquired during the marriage will be subject to “just and right” or equitable division. You or your spouse must first prove that the common law marriage existed before the community property laws apply.

What are the legal requirements for common law marriage?

Besides the requirement that you agreed to be married, have lived together, and have represented yourselves as being a married couple, there are other legal requirements that must be met before the marriage can be valid.

Both parties must be aged 18 or over, not have any existing formal or informal marriages to another person, and be unrelated.

Why should I have a formal marriage if I have the same rights under common law?

If you and your spouse want to be married, there are many benefits to going through the formal marriage process. Although you will have the same legal rights if you establish a common law marriage, you could face difficulties proving the marriage existed. If you go through the formal process, you will get a marriage license and significant documentation proving the marriage.

If your spouse dies in the future, you do not have this marriage license, and cannot prove common law marriage to the court, you will lose out significantly. The same applies if you want to divorce your spouse in the future. It is beneficial to have more documentation proving your marriage in these situations.

How long do we have to live together to be common law married?

There is no minimum time requirement for living together for a valid common law marriage. Once you can prove that you have lived with your spouse since you agreed to be married, this is enough to establish a common law marriage.

Can I register a common law marriage?

Yes, couples can register their informal marriage by signing a Declaration of Informal Marriage at the county clerk’s office.

Contact Skillern Firm Today!

The traditional marriage route is becoming less common in Texas. Many couples build lives together, live together, and have families without ever getting a legal marriage. However, just because you have lived together and existed as a couple does not mean that you are common law married. There are certain requirements that must be met before you can prove your common law marriage exists in Texas.

To learn more about the requirements of common law marriage, or informal marriage in Texas, contact Skillern Firm today. Our law firm comprises a team of highly experienced and skilled family lawyers that have helped hundreds of clients in cases similar to yours. We care about protecting the best interests of our clients and ensuring that they can move forward in their lives confidently.

Our law firm understands the complexity of family law issues, and we want to help you in any way we can. The outcome of family law cases, such as common law marriage, divorce, property division, child custody, and spousal support, can impact you for the rest of your life. We want to help ensure you get the best outcome possible for your case by providing top-quality legal representation.

Call our Texas family law firm today for a consultation at 936-213-8479.