Am I Common Law Married?

Texas has a unique history which has influenced modern family law. An informal or common law marriage is a form of marriage, where you are not required to obtain a license. Historically, Texas followed the laws of Mexico. Mexico’s laws evolved from civil law, and had what we call today community property. Community property means both spouses have roughly equal ownership. After Texas’s independence, we started recognizing the common law of England but also continued to honor community property laws.

In order to prove that you are common law married in Texas you must prove:

  1. Both agree to be married;
  2. Live together as spouses; and
  3. Represent to the community that you are married.

Most importantly, you must meet all three requirements!

Also, the two parties must be 18 years of age or older, you cannot be related by blood or adoption, and you cannot be married to someone else.

Common Law Divorce does not exist under Texas law. Only the courts can disband a marriage. You have two years after separation to file a lawsuit claiming a common law marriage.

Common Law Marriage is Important in Divorce if you own assets together. For example, if you are common law married and one spouse purchases a home it is considered common law property even if the home is in your spouse’s name only. However, if you are not common law married and the home was purchased by only one party then the home is considered separate property. Separate property is property owned only by one spouse.

Common Law Marriage is Important in Wills and Probate Cases. Under Texas law, boyfriends and girlfriends don’t have a right to inherit if their loved one passes away. However, common law spouses do have the right to inherit. Common law spouses sometimes have rights that are not stated in a will; which is why it’s important to talk to an attorney any time a loved one passes away.

More information on the Requirements Above

  1. Both Agree to be Married

First, you both have to agree to be married. You cannot agree to get married at some point in the future. According to law “the evidence must show the parties intended to have a present, immediate, and permanent marital relationship and that they did in fact agree to be husband and wife.” This factor can be the hardest to prove because there is often not a clear date of marriage. This is often established by the testimony of one or both of the parties. Another way this is established is by signing a Declaration of an Informal Marriage with the county clerk. An agreement to be married can sometimes be proved by documents from a honeymoon, photos from an informal ceremony, or anniversary cards.

At any time, you can formalize an informal marriage by filing a Declaration of Informal Marriage at the county clerk’s office in the county where you live. This process is similar to obtaining a marriage license; both parties must sign the form under oath.

  1. Live together as Husband and Wife

You have to live together as spouses in the State of Texas to meet this requirement. It’s important to maintain a home together and do things that married people do. There is no magic number to the time length that you live together. In addition, cohabitation needs not be continuous for a couple to enter into a common law marriage. Previous cases have determined that the term living together means to co-habitat it does not mean a sexual relationship, which is not a requirement.

  1. Represent to the Community that you are Married 

Occasionally holding yourself out as a married couple is not enough. You have to have a reputation in the community.  In other words, you should routinely and continuously hold yourselves out as a married couple for the best results. As much as possible, shout it from the roof tops. There is no such thing as a secret common law marriage.

A few other Important Facts.

No two cases are the same.

There is often conflicting evidence presented in these types of cases. The case can turn on who appears to be the most credible witness.

If you are the spouse that claims there was a common law marriage you have the duty to prove that there was a common law marriage. Therefore, it’s important to be prepared and have evidence to document your position.

Quick Reference Guide

You might be Common Law married:

  1. If you routinely introduce your significant other to people as your spouse at a party, at the pharmacy, or around family and friends;
  2. If you agree to be married;
  3. If your family refers to him as their son-in-law or daughter –in-law;
  4. If you Send mail from Mr. and Mrs. Smith or if other people send you mail that says Mr. and Mrs. Smith (for example: birthday cards or thank you cards);
  5. If you take out a loan together and sign the paperwork as husband and wife;
  6. If you purchase a home or other real property together and sign the deed as husband and wife;
  7. If you sign leases together or other documents;
  8. If you file income taxes together;
  9. If you wear wedding rings;
  10. If you use your partner’s last name;
  11. If you have insurance tougher and designate the other party as your beneficiary;
  12. If you Applied for public benefits together and listed each other as spouse; and
  13. If you have joint charge accounts together naming the parties as husband and wife.

You Might not be Common Law Married:

  1. If you never agreed to be married;                                                                                                 
  2. If you don’t tell anyone you are married;
  3. If you never actually lived together in the State of Texas;
  4. If you have children together but don’t meet the other requirements; and
  5. If when you are admitted to a hospital you state you are single.

You Might be in grey area:

  1. If you only occasionally introduce your spouse as husband or wife;
  2. If you sign paperwork together but it does not say spouse, husband, or wife;
  3. If you don’t file tax returns together;
  4. If you have an engagement ring but never had a ceremony;
  5. If you agreed to be married before you moved to Texas or on vacation; and
  6. If you lived together for a short a period of time.

***Not all states honor common law marriage and each state is different. If you live in a state other than Texas please find a local source to determine if you are common law married or not. If you leave Texas other states might not recognize your common law marriage.

Robert D. Clements, Jr. and Associates represents clients seeking legal advice for issues such as divorce, child custody, personal injury, probate, insurance litigation, and business litigation throughout southeast Texas, including Brazoria County, Galveston County, Harris County, Fort Bend County, Sugar Land, and Richmond.

© 2009 by Robert D. Clements and Associates

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