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Common Law Marriage

What is common law marriage in Texas?

Common law marriage—or informal marriage—is recognized by the state of Texas but couples must meet certain conditions to prove a legal marriage exists. There are also some misconceptions about common law marriage Texas residents should learn about if this type of legal marriage is of interest to them.

The BIGGEST misconception about common law marriage Texas?

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 common law marriage required to last in order to qualify as a legal marriage—that is not a factor in Texas.

While Texas doesn’t consider how many years is common law marriage required to last, the state has established other conditions that couples must meet to prove marriage by common law in Texas. According to Texas Family Code Chapter 2.401, in order to establish a legally valid common law marriage in Texas, couples must provide evidence of the following three conditions:

  1. They both agreed to be married; and
  2. After agreeing to be married they lived together as husband and wife in the state of Texas; and
  3. They represented to others (often described as “holding out” to others) that they are a married couple.

Couples must meet all three conditions simultaneously in order to establish a legally valid common law marriage in Texas. In addition, they must also comply with other Texas marriage laws, including both parties must be at least 18 years of age, not married to anyone else and not related to one another among other stipulations.

In order to “make it official” both parties can sign a Declaration of Informal Marriage form and file the form with the county clerk in the county where they reside. The signing and filing of this declaration validates the common law marriage as a legal marriage and entitles the parties to the same rights and duties as couples joined together through traditional ceremonial marriage.

Another random misconception about Texas marriage laws is that there is a restriction regarding how many times can you get married in Texas. Texas does not impose a limit on number of marriages.

How are disputes about common law marriage Texans resolved?

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 equitable 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 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.

However, timing is critical. 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.

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. 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.

What if things don’t work out, can I get a common law divorce 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.

This brings us back to same-sex marriage and the Relation Back Doctrine. Following 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 Relation Back go back to the date a couple legally married.

You can 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 alimony, or spousal maintenance, as it’s known in Texas.

In general, 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 divorce or within two years of the divorce filing.

If you’re expecting an alimony windfall in Texas, you better brace yourself. The state caps alimony 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.

Have questions about common law marriage in Texas or divorce?

If you’d like to speak with a  family law attorney in Fort Worth, contact us to schedule a confidential case review with our founder divorce lawyer Justin Sisemore. To do so, please call the firm at (817) 336-4444 or visit our contact page to schedule online.