Common Law Marriage in Texas

One uncommon but complicated reason Texans may need to hire a divorce attorney is for a common law marriage. Texas is one of a small number of states that recognizes common law marriage–also called informal marriage. There are many myths and misconceptions about common law marriage. One of those misconceptions is that you do not need a divorce for an informal marriage. Not only is that incorrect but divorcing a common law marriage can be more difficult than a formal marriage.

Bedford divorce attorney The Kielich Law Firm

What is a common law marriage in Texas?

A common law marriage is a legal marriage in Texas that becomes valid upon the spouses creating three conditions at the same time:

  1. They agree to be married;
  2. They presented themselves as married to other people; and
  3. After agreeing to be married they lived together in the same home.

A common law marriage must meet all of the other general conditions of a formal marriage (created with a ceremony and receiving a license). These include both spouses being eighteen or older and not related by blood.

The spouses may file a Declaration of Informal Marriage with the county clerk where they live to create a legal record of the marriage; however, that is not required.

A common law marriage has all the same rights and privileges under Texas and federal law as a formal marriage.

Top misconceptions about Texas common law marriage

Undoubtedly the biggest misconceptions about Texas common law marriage involve the cohabitation requirement. (The spouses living together.) There are two common misconceptions about this requirement. 

First, many people believe you must live together for a minimum period of time to form a common law marriage. That is not true. The Texas Family Code does not require any minimum length of cohabitation. Any length of time in which all three conditions exist simultaneously is enough.

Second, people also misbelieve that two people living together in a relationship for some lengthy period of time creates a common law marriage. That is also incorrect. All three conditions must exist together to create a common law marriage. Two people can live together in a romantic relationship for decades but if they never agreed to be married or told people they were married then there is no common law marriage in Texas. 

Additionally, sometimes people believe Texas only allows you to marry a certain number of times so any marriage after the limit doesn’t count. Texas does not limit how many times you can marry over your lifetime. Texas limits the number of marriages at the same time to one. 

Also, a common misconception is that if you stop living with a common law spouse for a period of time then the common law marriage ends. This is also not quite true. Under Texas law if the common law spouses stop living together for two years or more then it is presumed that there was never an agreement to be married in the first place. It’s not that the common law marriage ends. It’s presumed it never existed in the first place. This is also only a presumption. One spouse can overcome the presumption and move the common law marriage exists. The only way to end a common law marriage is divorce.


What is a common law divorce?

In Texas there is no such thing as a common law divorce. You can create a common law marriage without any formal legal action but the only way you can end one is by the death of one of the spouses or a regular divorce through the judicial system.

Divorce for a common law marriage in Texas

A divorce for a common law marriage in Texas follows all the same procedures and laws as any other divorce. In a divorce of an informal marriage the same property division, child custody, child support and spousal support rules apply. As a community property state that means your assets could be subject to division even if you stopped living together years ago. 

A core issue in divorces of common law marriages is whether the parties actually had a marriage. One spouse may challenge the existence of the common law marriage by asserting the three conditions did not exist together. If the court finds the three conditions did not exist simultaneously, then it will find no marriage existed and dismiss the divorce. Proving the existence of a common law marriage when challenged can be very difficult if the parties did not file a declaration of informal marriage. You definitely want a divorce attorney on your side. 

Multiple marriages involving informal marriages

Another complex problem involving informal marriages in Texas arises when a person ends up in multiple marriages at the same time. That can occur from creating the conditions for several overlapping informal marriages or informal marriages and a formal, ceremonial marriage. Texas only permits one marriage at a time so only one marriage can be legally valid at a time. Prior marriages that did not conclude in divorce (or the death of a spouse) are valid over later marriages. 

This creates extremely complicated situations for everybody involved, including potential criminal consequences for bigamy. One or more spouses may want to end their marriages with a divorce. That can create competing disputes about the validity or existence of each marriage. Under certain circumstances spouses of later marriages can receive part of the property division in a divorce of an earlier marriage in addition to the spouse of the earlier marriage.

If you find yourself in any part of that situation, then you need to hire a Texas divorce attorney right away. Failing to raise the right legal issues and present necessary facts may destroy your case and leave you emptyhanded even after years of marriage.

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