Common law marriage in Texas is a legal way for couples to be considered married without a formal ceremony or marriage license. It is important to understand how common law marriage works in Texas because it has legal effects, especially when it comes to divorce.
Texas family law treats common law couples the same as couples with a formal marriage. This means common law marriage is valid and legal for all purposes.
There are some myths about common law marriage. For example, many people think living together for a certain number of years automatically creates a marriage. This is not true.
To have a common law marriage in Texas, three things must happen, as stated in Section 2.401 of the Texas Family Code:
- The couple agrees to be married.
- They live together in Texas as a married couple.
- They tell others they are married.
There is no required amount of time to live together to create a common law marriage. The “seven-year rule” is a myth. A common law marriage exists as soon as these three things happen, no matter how long the couple has been together.
Some signs that a common law marriage exists include:
- Using the same last name.
- Making joint purchases.
- Applying for public benefits together.
If you want to learn more about divorce laws, especially for common law marriages, it’s important to get accurate information. In Texas, ending a common law marriage requires the same legal process as ending a formal marriage.
For reliable legal advice, consult the State Bar of Texas, a qualified divorce attorney, or read this step-by-step guide to getting a quick divorce in Texas.
How Does Texas Recognize common law Marriage?
Texas recognizes common law or informal marriage, including same sex marriage, as a legal marriage for all legal purposes. Same-sex common law couples share all the same legal rights and responsibilities as other married couples in Texas. Under Section 2.401 of the Texas Family Code, the couple must meet the three elements required by law to prove a common law marriage when registering at the Bureau of Vital Statistics:
- Agreement to Be Married: Both parties agree to be married to each other. This agreement can be explicit or implied through their actions and conduct.
- Cohabitation: The couple must live together as husband and wife. This cohabitation typically involves sharing a residence, but it’s not limited to that.
- Holding Out as Married: The couple must represent themselves as married to the public. This may include using the same last name, introducing each other as spouses, or filing joint tax returns.
The date the couple met all the requirements of an informal marriage is considered their official marriage date, which is especially important for same-sex couples after the legalization of same-sex marriage. Courts determine whether a common law marriage existed on a case by case basis, evaluating all the facts and evidence rather than relying on a single factor.
Obstacles to common law Marriage in Texas
The couple must not be related to one another by blood or adoption, such as as a whole or half-brother or sister. Nor may they be a full or half aunt or uncle, first cousin or a niece or nephew. They are also forbidden to marry a former stepparent or stepchild. First cousins once removed may marry, however. If partners stop living together for more than two years without taking action, the law presumes that they never intended to be married. This is a rebuttable presumption, meaning that the presumption can be challenged and overcome if there is sufficient evidence to show that a marriage did exist.
How to Officially Document a common law Marriage
To officially document your common law arrangement in Texas, the couple can fill out and sign a Declaration of Informal Marriage form and file it with the county clerk at the county clerk’s office, such as in Dallas County. This is not required to establish a common law marriage but can serve as evidence in future disputes. Other types of evidence that can help prove a common law marriage include signed leases, utility bills, and tax filings.
Differences Between common law Marriage and Formal Wedlock
Common law marriage and a formal one (often referred to as ceremonial or traditional) differ in several key aspects:
- Formal Marriage: The couple typically goes through a wedding ceremony and obtains a state-issued marriage license. An authorized officiant, such as a religious leader or judge, conducts the ceremony.
- Common Law Marriage: Instead, it establishes wedlock through the couple’s mutual consent, cohabitation, and public representation of themselves as married. In Texas, both formal and common law marriage are considered legal marriage, and each is a valid and legal way to marry under state law.
- Recognition of a Formal Marriage: All states and countries recognize the institution of a formal marriage. They provide clear legal rights and responsibilities to both spouses.
- Common Law Marriage: Some U.S. states, including Texas, Colorado, and others, recognize common law marriages. But not all states acknowledge them. Recognition can also vary internationally, making common law marriages less portable across state or national borders. In legal disputes, courts may require evidence to determine whether a common law marriage existed, such as documentation or testimony.
Differences in Legal Requirements
To enter into a formal marriage, couples must meet specific legal requirements, which typically include obtaining a marriage license, having witnesses, and complying with state laws. Common law marriage, on the other hand, revolves around the couple’s conduct and intent to be joined as a couple less formally. There are no specific formal requirements, but under Texas law, the existence of a common law marriage must be proved by meeting three elements: (1) an agreement to be married, (2) living together in Texas as spouses, and (3) representing to others that you are married. These three elements must be proven with evidence for the marriage to be legally recognized. Whether a common law marriage is recognized is determined on a case by case basis, depending on the unique facts and circumstances of each situation.
Dissolution of Marriage – Both common law and Formal Nuptuals
Dissolving a formal marriage requires a legal divorce process, which follows the same legal procedures as a traditional divorce. This includes filing divorce papers, property division, child custody arrangements (if applicable), and adhering to state laws. Dissolving a common law marriage also requires a legal divorce process with the same considerations as a formal marriage, and a divorce decree is required to officially end the marriage. Hiring a divorce attorney is strongly advised to help navigate the complexities of proving a common law marriage and to ensure your rights are protected during the divorce process. While some couples attempt to avoid divorce by going their separate ways, this can lead to legal complications, especially in the context of common law marriage.
What Factors Impact the Division of Assets and Debts
The division of marital property and debts in a common law marriage divorce depends on several important factors. In Texas, common law spouses have the same legal rights to marital property as couples in a formal marriage.
Here are key points to understand about property division in a common law divorce in Texas:
- The length of the relationship matters. The longer the couple has been together, the more their finances are likely mixed. This can make dividing marital property and debts more complex.
- Each spouse’s contributions count. This includes money earned and assets gained, as well as non-financial contributions like caring for children and managing the household.
- Texas law requires a fair division of marital property acquired during the marriage. Both spouses have the right to a just share, no matter who paid for or owns the property.
- Community property is a central concept. It includes all assets and income earned by either spouse during the marriage. Exceptions are separate property items, such as inheritances, gifts, or property owned before the marriage that remains separate.
Understanding these factors helps clarify how marital property and debts are handled in a divorce common law marriage Texas case. Both spouses should be aware of their rights under Texas law regarding community property and marital property during the divorce process.
During a Texas divorce, including a military divorce, the presumption is that all assets acquired by the couple are community property and should be divided equitably, though not necessarily equally, between the spouses. This system ensures a fair distribution based on circumstances unique to each divorce case. Additional factors considered in a Texas divorce may include each spouse’s age, health, and earning potential.
It is essential to seek legal counsel from an experienced divorce lawyer who can navigate the specific laws and circumstances of the jurisdiction where the divorce is taking place. Consulting with a family lawyer, along with maintaining open communication and cooperation between both parties, helps facilitate a smoother and fairer resolution.
What Rights and Benefits Do common law Spouses Have in Texas?
Once established, common law spouses, whether a same sex couple or opposite sex, have the right to: The Texas Family Code does not differentiate between informal marriages of same-sex and opposite-sex couples.
- inherit property from each other without a will, and have inheritance rights equivalent to those in formal marriages,
- receive spousal support upon separation,
- make healthcare decisions for each other,
- file taxes jointly,
- obtain insurance coverage through their spouse’s employer,
- and qualify for social security benefits as a married couple.
A common law marriage is recognized for all legal purposes, including tax, insurance, and inheritance. For legal and tax purposes, a common law spouse is considered a married person.
Problems If One Spouse Dies
If one partner in a common law marriage passes away, the surviving spouse may face challenges—especially if the marriage was never formally documented. Without clear evidence of the relationship, the surviving partner could struggle to claim inheritance or other legal benefits.
To be recognized as a surviving spouse, one must prove the existence of the common law marriage. This can be critical during estate settlement or in probate court.
That’s why it’s important for couples to document their relationship while both are alive. This can include:
- Joint bank accounts or credit cards
- Shared insurance policies
- A signed Declaration of Informal Marriage
Taking these steps can help establish the marriage legally and protect inheritance rights in the future.
What Happens to Child Custody in a Common Law Divorce in Texas?
Child custody issues in a common law divorce are handled just like in a traditional divorce. Texas courts focus on the best interests of the child, regardless of the parents’ marital status.
When common law spouses separate and have children, the court considers several factors to determine custody, including:
- The child’s age and physical/emotional needs
- Each parent’s ability to care for the child
- Emotional or physical risks to the child
- Each parent’s parenting abilities and stability
- Willingness to support the child’s relationship with the other parent
Texas courts often award joint managing conservatorship, which gives both parents decision-making rights. However, one parent may be named the primary custodian, deciding where the child lives. In some cases, one parent may request sole custody.
If the common law marriage was never officially recognized, the parent seeking custody may also need to legally establish paternity before custody can be awarded.
How Does It Affect Inheritance in Texas?
In Texas, common law spouses have the same inheritance rights as formally married couples—but only if the marriage can be proven.
If a common law spouse dies without a will, the surviving partner is legally entitled to a share of the estate under Texas intestate succession laws. This includes both real property (like a house) and personal property (like vehicles or savings).
However, if the marriage is not clearly documented, other family members may dispute the surviving spouse’s inheritance rights. To avoid legal battles, it’s strongly recommended that common law couples:
- Formally declare their marriage with the county
- Maintain joint ownership or financial documents
- Create a valid will that clearly outlines their wishes
Having a will helps ensure that the surviving partner is protected and that assets are distributed according to the deceased’s intentions.
Frequently Asked Questions
Do I need to get a divorce for a common law marriage in Texas?
Yes. Once established, a common law marriage is the same as a ceremonial marriage in Texas. You must file a formal Petition for Divorce to end the relationship, divide property and custody. Simply separating does not end the marriage. A divorce decree is required as the final legal document that officially ends the marriage. (Texas Family Code § 2.401)
What are the 3 requirements for a common law marriage in Texas?
To have a valid common law marriage in Texas, you must meet the three elements outlined in Section 2.401: (1) agree to be married, (2) live together in Texas as a married couple, and (3) represent to others that you are married. All the requirements—the three elements—must exist at the same time for the marriage to be recognized. There is no time requirement. (Texas Family Code § 2.401)
How do I prove a common law marriage if my partner denies it?
You must provide evidence of the 3 requirements, and the existence of a common law marriage must be proved in court. The burden of proof is on the party claiming the marriage exists. If the other party denies it, you must present your evidence to a judge after filing for divorce to get a formal ruling. The marriage is only recognized if it is proven with strong documentation, which is key for contested cases.
What documents are the best evidence to prove a common law marriage?
The strongest evidence is a filed Declaration of Informal Marriage, joint tax returns listing you as married, signed leases, utility bills in both names, and shared property deeds or loan applications. Tax filings, including filing as a married person filing singly, can also be used as evidence of a marital relationship. Other helpful documents include:
- Joint bank accounts or credit cards
- Insurance policies listing each other as a spouse
- Witness testimony from friends and family
- Social media posts and photos showing married status
Is there a deadline to claim a common law marriage after I separate?
Yes. In Texas there is a 2 year time limit. If a divorce is not filed within 2 years of separation, the law creates a rebuttable presumption that no marriage ever existed. This means the presumption can be challenged with evidence to the contrary, but it makes your case much harder to prove. (Texas Family Code § 2.401(b))
How long do I have to live together to be common law married in Texas?
There is no time requirement. The idea that you must live together for a specific “magic number” of years—such as the so-called 7 year rule—is one of the common myths about common law marriage. In reality, a common law marriage can be established in a short period as long as the 3 legal requirements (agreement, cohabitation, and holding out as married) occur simultaneously.
How is property divided in a common law divorce?
Texas community property laws apply. All assets and debts acquired during the marriage are presumed to be jointly owned marital property and must be divided in a “just and right” manner. Separate property (like inheritances or assets owned before the marriage) is not subject to division. (Texas Family Code Chapter 7) Both spouses in a common law marriage are subject to Texas community property laws regarding the division of marital property.
Can I get alimony (spousal maintenance) in a common law divorce?
Yes, a common law spouse can request spousal maintenance. However, Texas has strict eligibility rules. Generally, you must prove the marriage lasted 10+ years and you lack sufficient property or income to provide for your minimum reasonable needs, among other limited circumstances. (Texas Family Code Chapter 8)
How does a common law divorce affect child custody and support?
The process is the same as a divorce from a ceremonial marriage. When common law spouses share children, custody and support issues are handled the same as in formal marriages. All decisions regarding custody, visitation and child support are based on the best interest of the child. Paternity may need to be legally established if it was not previously acknowledged. (Texas Family Code Chapters 153-154)
Can same-sex couples have a common law marriage in Texas?
Yes. Since the Obergefell v. Hodges Supreme Court ruling, same-sex couples can establish a legally recognized common law marriage in Texas. To be recognized as a legal marriage, same-sex couples must meet all the requirements of the 3 part test, and must also go through a formal divorce to dissolve the union. (Obergefell v. Hodges, 576 U.S. 644 (2015))
How much does a common law divorce cost in Texas?
A common law divorce costs between $3,000 and $15,000 in Texas. Uncontested divorces average $3,000-$5,000, while contested cases can exceed $15,000. Additional costs may include proving the marriage existed which requires gathering evidence and potentially expert witnesses. Filing fees alone range from $300-$400 depending on the county. Hiring a divorce attorney can help manage these costs and navigate the complexities of a common law divorce, especially when it comes to proving the existence of the marriage and protecting your rights throughout the process.
How long does a common law divorce take in Texas?
A common law divorce takes at least 60 days due to Texas’s mandatory waiting period. Uncontested cases typically finalize in 2-3 months. Contested divorces, especially those disputing the marriage’s existence, can take 6-18 months. The timeline depends on court schedules, how courts evaluate the evidence and determine the validity of the marriage, the complexity of property division, and whether you reach agreements outside of court.
What if I don’t file for divorce within 2 years?
After 2 years of separation without filing for divorce, Texas law assumes no common law marriage. This is known as a rebuttable presumption—if you and your partner have not filed for divorce within two years of separating, the law presumes that no marriage existed. However, this presumption can be rebutted if the existence of the marriage is proved or proven with sufficient evidence. You’ll need to have overwhelming evidence to overcome this presumption. Any property acquired during the relationship will be treated as separate property, not community property, and you could lose a lot of money.
An Experienced Texas Divorce Lawyer Can Help
The Warren & Migliaccio, L.L.P. law firm can help if you are facing a divorce in a common law marriage. Our experienced Texas divorce attorneys will assist you in proving the existence of your common law marriage to the court. This is a critical first step to secure your legal rights.
We work hard to gather the necessary evidence. This includes documents about shared finances, affidavits from witnesses, and other important information that shows your marital relationship.
It is strongly advised to consult a divorce attorney when dealing with common law marriage and divorce issues. The process can be complex and involve legal risks.
We can also help you divide property fairly. Our family law attorneys will advocate for your fair share of assets and debts. We make sure your contributions to the partnership are recognized.
When it comes to child custody, our lawyers protect your parental rights. We focus on your children’s best interests. We guide you through the legal system to secure a custody arrangement that supports your role and your children’s well-being.
If you need spousal support, want to pursue a collaborative divorce, or face problems with inheritance, we are ready to represent you. We negotiate settlements that reflect your shared life. When needed, we will litigate to achieve a fair outcome.
Our goal is to give you peace of mind and expert legal help. We want you to move forward from a common law divorce with your rights protected and your future secure.
Call the law office of Warren & Migliaccio, L.L.P. at (888) 584-9614 or contact us online to schedule a free case review. We will be here for you every step of the way.
