Common Law Marriage in Texas: A Quick Overview

Published March 25, 2024

The state of Texas acknowledges common-law marriage. Couples must meet certain conditions to validate that a legal marriage exists.

In this article, we’ll provide a comprehensive overview of it. We’ll discuss its exact nature, misconceptions, and all the mechanisms that make it important. Let’s waste no more time and get started.

What Is a Common Law Marriage?

A common law marriage is a legal recognition of a relationship between two people who consider themselves married without going through the official process of obtaining a marriage license and having a formal marriage ceremony. The concept originates from when it was challenging for people to have traditional weddings. It may be because of distance, financial hardship, or other reasons.

What Is Common Law Marriage in Texas?

Under Texas law, a common law marriage can be established through evidence that the couple:

• Mutually agreed to enter matrimony
• Subsequently, cohabitation in the state as a married couple
• Held themselves out to the public as a married pair

To establish a common law union, the couple must present themselves to others as husband and wife. This can be attained through reputation or declaration.

Reputation is the belief by the couple’s community that the people are married. The community would consist of friends, family, and others who know the pair. Testimony of them may be used to display that the pair represented to others that they were married.

For declarations, these may include, but are not limited to:

• Filing joint income taxes
• Declarations on financial documents and loan applications
• Jointly buying a house or vehicles
• Listing each other as beneficiaries on life insurance documentation, 401k, or other shared accounts
• Introducing each other as spouses in public
• Using the same last name
• Sending cards or letters addressed to your husband or your wife

The Biggest Misconception About Common Law Marriage in Texas

One of the biggest misconceptions about common-law marriage in Texas is the belief that simply living together for a specific period automatically results in a common-law marriage. This myth continues despite clear legal criteria that must be obtained for a couple to be considered married under common law in Texas.

The conditions we discussed above underscore mere cohabitation. Regardless of duration, it is not sufficient to establish a common-law marriage in Texas. Both partners must actively present themselves as married to the public and agree they are in a union.

Couples must also comply with other Texas marriage laws to meet standard law marriage requirements. It includes:

• Both parties must be at least 18 years old
• Neither party can be married to anyone else
• The parties may not be related to one another

Both people involved can sign a Declaration of Informal Marriage Form to make it official. They must file the form with the county clerk where they settle, after which they can obtain a marriage license in Texas. The signing and filing of it validates the state’s common law marriage. It is treated as a legal marriage. It entitles the parties to the same rights and duties as couples joined together through ceremonial marriage.

How Are Disputes About Common Law Marriage Resolved?

Whether or not a couple is a common law marriage can become an issue when they split, and one party wants to take advantage of Texas community property laws. Texas is a community property state. All assets and debts accrued during marriage are subject to just and equitable division upon divorce.

The Texas family courts hear common law marriage disputes on a case-to-case basis. Moreover, the Declaration of Informal Marriage isn’t demanded here. If one party can affirm that the couple met all three conditions demanded for informal marriage, then community property must be considered.

Can Same-Sex Couples Get Common Law Married in Texas?

Yes. Same-sex couples can enter into a common-law marriage in Texas. The criteria for ruling it are no different for same-sex couples as they are for opposite-sex couples.

Why Does It Matter if a Couple Is Common Law Married?

Suppose a common law marriage is established, either through the declaration of informal marriage form or by proving the three criteria. In that case, the spouses hold all the same legal rights as those with a marriage license.

These rights can be vital throughout the union. Moreover, in the event of death or divorce, if a couple who has an informal marriage separates, they have the protections that come with the dissolution of a traditional marriage.

What Happens if a Couple in a Common Law Marriage Decides To Separate?

Suppose a couple in a common law marriage decides to separate. To end their union officially, they must adhere to the same legal process as any other married couple. Despite the informal nature of their relationship, they are obliged to obtain a legal divorce to dissolve the marriage.

1. Filing for divorce

Like couples in a formal marriage, one must file a petition for divorce in a common law. It initiates the legal process of divorce.

2. Division of property

The couple must address the division of marital property and debts. In Texas, property acquired during marriage is generally considered community property. Upon separation, it must be divided equally between the spouses.

3. Child custody and support

If the couple has children, the divorce process will involve making arrangements. Such arrangements include child custody, visitation rights, and child support. Both must ensure that the best interests of the children are considered.

4. Spousal support

One partner may be entitled to spousal support or alimony, depending on the circumstances. However, factors influence this decision. The length of the marriage, each partner’s financial situation, and contributions to the household are evaluated.

5. Legal documentation

Various legal documents and agreements will be prepared and filed with the court throughout the divorce process. One such document is a divorce decree, which officially ends the marriage once a judge signs it.

Common Law Divorce

Common law marriages are treated the same as formal marriages under the law. Thus, there is no such thing as a common law divorce. Couples in a common law union must undergo the formal legal process of divorce to end their marital relationship.