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Is Texas a common law state? Yes. Common law marriage—or informal marriage, as it referred to in Texas—is recognized by the state of Texas. Couples who are common law married generally don’t take the path of a traditional marriage, meaning they may skip the formal ceremony and don’t obtain a marriage license. That being said, couples must take certain steps to prove a legal marriage exists.
Under Texas law, a common law marriage in Texas can be established in two different ways. The two paths to Texas common law marriage include:
The easiest and most clear-cut way to legally establish an informal or common law marriage is for the couple to go to the county clerk’s office together and sign a declaration of informal marriage. after which the couple can obtain a marriage license in Texas.
The signing and filing of the Declaration of Informal Marriage form validates the Texas common law marriage as a legal marriage and entitles the parties to the same rights and duties as couples joined together through a traditional ceremonial marriage.
The second path to legal Texas common law marriage is to provide evidence that the couple has met three conditions as described in Texas Family Code Sec. 2.401. So, what is required for common law marriage Texas? For common law marriage, what makes you legally married in Texas includes:
So, does Texas recognize common law marriage? Yes, but couples who want to know how to prove common law marriage in Texas must meet all three conditions simultaneously in order to establish a legally valid common law marriage in Texas.
As noted above, the court does require that the alleged common law spouse or spouses provide evidence to prove they meet specific requirements: the three conditions for informal marriage.
To support the first condition, mutually agreeing to be married, the court will consider actions the two parties have taken that are similar to the actions traditionally married couples take. For example, the court may find you meet certain requirements to establish a common law marriage in Texas if you:
That’s not to say meeting all the requirements listed above will convince the court that a common law marriage existed, especially if the two parties don’t agree they are a common law married Texas couple.
The Texas family law courts scrutinize these cases closely because some people will claim to be a common law spouse in Texas for personal financial gain or couples will list themselves as married in situations where it’s beneficial to them and not in cases where it is not. Again, they must also meet the two other conditions laid out in the Texas common law statute.
A common law married couple must prove they lived together in the state of Texas as a married couple. They do this by establishing a household together and living day to day like couples in a traditional or formal marriage do.
Providing evidence of a shared mailing address and testimony of friends and family may be used to support this condition. For example, if you own a home and pay a mortgage together, both names may be on the mortgage or deed to the home.
Both parties should consistently represent to others that they are married in order to meet this condition. This may be proven by testimony from friends, family members or members of the community who testify that the couple represented themselves as married.
Declarations the couples have made, like consistently calling each other husband and wife in public, proudly displaying their wedding rings and actions they have taken (like those listed in the bullets above) may also be used to support claims of Texas common law marriages.
In addition to meeting the three conditions required to establish a legally valid common law marriage in Texas (informal marriage), couples must also comply with other Texas marriage laws to meet common law marriage requirements in Texas, including:
If the court does find that a couple is married under the legal statutes that govern a marriage of common law in Texas, the judge will sign off and declare the couple legally married. What does that mean?
That means all of the legal rights and laws that govern a traditional marriage in Texas would now apply to the two parties as a legally married couple. One of the biggest impacts here is that the parties would need to go through the same legal channels to get a divorce as a traditionally married couple would.
Being legally married in Texas also means you may be responsible for a portion of your spouse’s debts. In addition, since Texas is a community property state, any property acquired during marriage would be subject to just and right division upon divorce.
There are also some misconceptions about common law marriage in Texas residents should learn about if this type of legal marriage is of interest to them. The BIGGEST misconceptions about common law marriage in Texas usually revolve around questions regarding the duration of the relationship or marriage, such as:
Relationship duration has zero bearing on whether a couple is in a common law Texas marriage or not. Oftentimes, when people ask is common law marriage recognized in Texas, and they find out that it is in fact recognized, they mistakenly believe that living together for a certain period of time equates to common law marriage Texas—6 months, 5 years, 10 years, etc. It does NOT.
This myth is false not only in Texas but in other states in the US. So, if you’re wondering how long is Texas common law marriage required to last in order to qualify as a legal marriage—that is not a factor in Texas.
Another misconception about common law marriage Texas residents should be aware of is the existence of common law divorce. Common law divorce Texas doesn’t exist because once the state legally recognizes your informal marriage, you need to get a regular divorce just like people who tied the knot in a ceremonial marriage.
If you do plan to divorce after a common-law marriage, the legally recognized date of marriage will be critical since Texas is a community property state. That means any assets accumulated from the date of marriage up to the date of the divorce are subject to division as community property.
Like other community property states, Texas also recognizes separate property, which are those assets owned by a party prior to the divorce and may include certain assets gifted to one party but not the other during the marriage.
Since the legalization of same-sex marriage, our Fort Worth family law firm has handled more same-sex divorces. What we’re seeing a lot now with same-sex divorces is how the doctrine applies to claims for marital assets, which due to the Relation Back Doctrine go back to the date a couple legally married.
Should you decide to end your Texas common law marriage and get a divorce, it will be essential to create an inventory of all assets accumulated during the marriage and distinguish those assets from those that would qualify as separate property. Both parties are required to submit an inventory of assets during the discovery phase in a Texas divorce.
What can you expect if you are in a common law marriage (or believe you are) and you and/or your common law spouse want to divorce? Some important considerations to keep in mind include:
Whether or not a couple is common law married can become an issue when a couple splits and one party wants to take advantage of Texas’ community property laws. Texas is a community property state, which means that all assets and debts accumulated during marriage are subject to just and right division upon divorce.
The Texas family courts consider common law marriage disputes on a case-by-case basis. That piece of paper—the Declaration of Informal Marriage—isn’t required. If one party can prove the couple has met all three conditions required for informal marriage in Texas, then community property will need to be considered.
Couples take many actions that compel the state to believe, “These two people lived like a married couple.” The court will weigh all of the evidence. For example, if you filed taxes as a married couple, applied for loans as a married couple, wore rings on your ring fingers for the whole world to see and held yourself out as a married couple in other ways, the court could declare the informal marriage as valid.
You must file a common law marriage claim less than two years after separating from the other party. Otherwise, the court will presume that no legal marriage exists. If you find yourself in a legal dispute over a common law marriage, it’s best to not delay in seeking legal advice from a family law attorney familiar with the intricacies of Texas common law marriage.
Even if less than two years have passed, details and memories of potential witnesses can get murky. For example, in order to establish common law marriage in Texas, a couple must have represented themselves to others as being married, which is often confirmed (or not confirmed) by witnesses who knew and spent time with the couple. As time goes by, memories fade.
Can same-sex couples get common law married in Texas? Yes. Following the US Supreme Court’s 2014 decision in Obergefell v. Hodges that legalized same-sex marriage, same-sex common law marriage has been recognized by the state of Texas. In addition, the state recognizes the legal date of marriage as the earliest date the couple met all of the legal requirements for common law marriage or informal marriage in Texas.
One of the interesting aspects of Texas legalizing same-sex marriage is the state’s Relation Back Doctrine mentioned above. Among other legal claims, the doctrine allows same-sex couples that had a ceremonial or legal marriage in another state that recognizes same-sex marriage (and/or a common-law marriage claim in another state) to “prove that up.”
For example, if a same-sex couple legally married in Vermont on May 1, 2010, Texas would recognize that date as the couple’s legal marriage date because the state of Vermont legalized same-sex marriage in 2009.
If you’re wondering how to prove common law marriage in Texas, and you’d like to speak with a family law attorney in Fort Worth, contact us to schedule a confidential case review at the Sisemore Law Firm. To do so, please call the firm at (817) 336-4444 or visit our contact page to schedule online.
In Texas, you can marry as many times as you want but to only one person at a time. If previously married elsewhere, you would need to dissolve that marriage before pursuing a new, legal marriage in Texas.
Unmarried partners typically do not enjoy the same rights that married partners do in Texas, as you need to be legally married to receive a just and right share of the marital estate’s community property. In the event of a breakup, unmarried partners do not have community property assets and debts to divide. Furthermore, unmarried partners do not have the ability to receive spousal maintenance.
Unmarried couples can however come to certain agreements regarding finances by executing cohabitation agreements or other legal documents that establish property ownership and rights (similar to formal business arrangements regarding property). If you have concerns about property or financial support from a partner you are not legally married to, formally or informally, a family law attorney can explain your options.
It’s easy to see how disputes over the legal marriage date can play a role in Texas divorces and community property involving both common law and same-sex marriages. The same holds true for spousal maintenance, which is what spousal support is referred to in Texas. The legal date of marriage may be a factor in both the amount and duration of spousal maintenance one party pays to another in Texas.
To be clear, alimony (which is different than spousal maintenance) is not an obligation covered in the Texas Family Code. Instead, alimony is something two parties may agree to contractually because there is no legal statute in Texas that requires one party to pay alimony to another.
When it comes to spousal maintenance, a party must prove he or she is unable to provide for his or her minimum reasonable needs and meet certain conditions to receive spousal support in Texas. One of those conditions is that the marriage lasted 10 years or more. The 10-year requirement could be waived if the paying spouse was convicted of or received deferred adjudication for an act of family violence during the quick divorce process or within two years of the divorce filing.
If you’re expecting an alimony windfall in Texas, you better brace yourself. The state caps spousal maintenance at $5,000 per month or 20 percent of the paying spouse’s average monthly gross income, whichever is less. How long you may receive spousal support in Texas is also limited based on years of marriage and other factors. Your divorce attorney can explain the options available to you.
No. In the United States, seven states—Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island and Texas—as well as the District of Columbia, fully recognize common law marriage. Several other states recognize common law marriage on a limited basis.
These states—Alabama, Florida, Georgia, Idaho, Indiana, New Hampshire, Ohio, Pennsylvania and South Carolina—have abolished common law marriage but do recognize those marriages that occurred prior to a certain date or in relation to an inheritance (New Hampshire). You can find more details on FindLaw.com.
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