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Common Law Marriage Texas

Posted on November 2nd, 2012 by The Red Headed Lawyer

Are you in a common law marriage (Texas law calls it an “informal marriage”)? This is one of the most misunderstood aspects of Texas law and can be one of the most important. Here are some answers and some examples.

A common law marriage can be declared by going to your local county clerk’s office and completing and filing a Declaration of Informal Marriage. This is the easiest and most straightforward way IF it is your desire to be married without a formal marriage (marriage license, ceremony, etc).

Far more dangerous, in my opinion, is ending up married when you did not intend to do so. How does this occur in Texas?

Texas Law

Lets look at what Texas law says and then look at some ways that a marriage might occur without one of the parties intending to be married.

Here is a quote from the Texas law.

(2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married…

Texas Family Code Sec. 2.401(2)

Let’s analyze that, because MUCH confusion arises over these seemingly simple sentences.

  1. “the man and woman agreed to be married…”
    Does this mean the agreement has to be in writing? No, although it might be easier to prove if the agreement were in writing. Also, stay with me here. The case law that further defines this phrase states that an agreement will be presumed if the other elements (see below) are met. This means if you do the other things in #2 and #3 below, you agreed, whether you knew it or not!
  2. “…after the agreement they lived together in this state as husband and wife…”
    Even more confusing. Lived together for how long? Ten minutes, ten years? The statute does not define how long you have to live together. Presumably, any period of time can count depending on the circumstances.
  3. Lived together as husband and wife?
    How do you live together as husband and wife if you are not married? The gist of this is that if you let other people think that you are husband and wife and all the other elements of the statute are met, you could indeed be husband and wife. How do you “represent” that you are husband and wife to other people? The most obvious is telling other people, “This is my husband, ____” or “This is my wife, ____.” This is difficult to prove, however, and is the least used way to prove a common law marriage. The most common examples are those which are in writing. For example, filing an income tax return together where the parties file as husband and wife. Another is adding your partner to your health insurance policy through your employer as your spouse. Note, some larger companies allow unmarried partners to add each other to health insurance policies while declaring a relationship but not a marriage. This is not the same as declaring on the health insurance application that you are adding your “spouse.”

So let’s recap. If you agree to be married (in writing or not) and after the agreement (which can be presumed) live together (for some unspecified period of time) in Texas and in Texas represent to others that you are married (by telling other people, filing income tax returns together, adding your partner to your health insurance policy as your spouse, or in any other way making people think you are married), you will be married, whether or not you intended to be married. The caveats: You must be 18 for these provisions to apply to you or your partner; cannot already be married to someone else; and if you separate and cease living together any proceeding declaring there was a marriage must be made within two years of the date of separation. Common examples of declaring there was a marriage are filing for divorce during the two year period or, if the partner is deceased, filing some probate action claiming a marriage existed before the partner died. Note that it is what the law calls a “rebuttable presumption” that there was no agreement to be married if any such declaration is not made without two years of separation. Meaning that a claim could still be made after two years, but it will be much harder to prove.

What else do I need to tell you? Be VERY careful about living with someone when there is no formal marriage and no marriage is intended. If you do that, do not under any circumstances tell other people, or allow your partner to tell other people, that you are husband and wife. Do not file income tax returns together, sign a lease together, put your partner on your health insurance or allow him or her to put you on his or her policy. The implications go way beyond simply disagreeing and splitting up. It can affect such things as real property ownership, federal income tax liability, ownership of 401(k) or pensions plans, and too many other things to list here.

Other notes/common questions:

  • Does having a baby together make a couple married?
    No. See above. A different legal procedure, known as a paternity adjudication, is required to establish the terms of access and possession, child support, etc.
  • Does buying real property together make a couple married?
    No, as long as they do not buy it as husband and wife. And be very careful here. Often, lenders and title companies, if you are living together, will tell you that you are already married and want you to sign papers as married. Absolutely refuse to do so if the intent is to buy the real property as real estate partners but not as a married couple.

Last but not least, if you have read the above and believe that you are unintentionally in a common law marriage and want out of it, the only way to get out (if the relationship is less than two years old) is to file for divorce. There is no “common law” divorce. Divorce proceedings for common law marriages are the same as for formal marriages.