Texas is one of a handful of states that still recognizes common law marriages, also referred to as an informal marriage. Common law marriage existed since colonists from the United States arrived in what is now Texas. It was a way for people to marry in places where a judge or religious official may not be readily available. The state went as far as codifying common law marriage into the Texas Family Code and created a formal document common law spouses can file to prove the existence of their common law marriage.
How do you get out of a common law marriage in Texas?
If you entered a common law marriage in Texas and want to dissolve it, then you must obtain a divorce through the Texas courts. Although a common law marriage does not require a formal procedure to become married, the process to end that divorce is no different from a formal, ceremonial marriage. For this reason, if you believe you may have entered into a common law marriage you need to end, then you should hire a divorce lawyer right away. Your attorney can assess your situation and advise you whether you are common law married and whether you need a divorce to end the marriage. If it is unclear whether a common law marriage exists, there are other judicial procedures your attorney can pursue to obtain a court order declaring no common law marriage exists.
What does a Texas common law marriage require?
To understand how to disprove a common law marriage, we need to first understand what you do to become common law married in the first place. In Texas you create an informal marriage by simultaneously performing three acts:
- Agree to be married;
- Live together in a household as spouses;
- Present yourself as married to other people or entities.
That’s it. Despite what you may read online, there is no time requirement for how long you have to live together or how long you have to perform the other two elements. As long as you perform all three at the same time, you likely created a common law marriage. You could live together as husband and wife in a hotel room for one night, sign the hotel documents as husband and wife, and agree the two of you are married. That could be enough. (Keep in mind that you can create a same-sex common law marriage in Texas, too.)
Once you become married in Texas, even in an informal marriage, the marriage exists until a court says otherwise or one of the spouses dies.
How do you disprove a common law marriage existed in Texas?
You may have had a long term relationship where maybe you met the elements for a common law marriage and you want to get out of it without worrying about losing assets dividing property in a divorce, or maybe you weren’t common law married but your former partner has a differing opinion. Unless you want to go through with a divorce and risk a property division, you need to disprove the common law marriage ever existed. Let’s talk about some of the ways to attack an alleged common law marriage in Texas.
Keep in mind that disproving a common law marriage is not an easy task if the elements appear to have possibly co-existed. These arguments rely heavily on the facts of your situation. You will likely end up in a trial where presenting evidence is more than just you getting up and telling the judge what you think. An experienced divorce attorney will likely make an important difference in the outcome of your case.
No declaration of informal marriage
At the top of the post I mentioned that you can file a document that confirms two people established an informal marriage. This short form, a declaration of informal marriage, is signed and filed with the county clerk. The declaration of informal marriage confirms the existence of the marriage and when it began. The declaration can help establish a marriage for employment benefits like health insurance or death benefits under a life insurance policy. The absence of filing a declaration does not disprove a common law marriage, but filing one makes it nearly impossible to disprove.
The two of you did not live together in a household as husband and wife
People who obtain a ceremonial marriage with a license don’t have to live together to be married but it is an element to establish a common law marriage. Living together, or cohabitating, demonstrates that the two of you intended to build a life together–but what does that mean? You do not satisfy this element, often referred to as cohabitation, just by sharing one home. Two roommates in different bedrooms are not married because they share rent. Even two people in a romantic relationship are not married because they share one bed. You must live together, creating a single household and operate that household like spouses.
Often, there are facts that cut both ways on this element. It may be helpful to disprove a common law marriage by showing facts like:
- Although you lived with the alleged spouse sometimes, you maintained a residence elsewhere that you received mail, insured your car, etc.;
- You never shared bank accounts or paid for anything beyond splitting home expenses evenly;
- You divided home duties like roommates rather than spouses or romantic partners;
- You did not share a bed;
- There was no sexual activity;
- There were no long term plans for the household as a single home.
Of course, the only fact that would conclusively disprove this element of a common law marriage would be if the two of you never lived together at all.
There was no agreement to be married
This elements requires that the alleged spouses both agreed that they were married. That means they had an honest desire to form a real, permanent marriage. Not just one, but both. This element can be tricky to prove on its own. Unless the parties agreed in writing to create a marriage then the person seeking to prove a common law marriage exists must rely on the conduct of the spouses. That often bleeds into the other two elements because they tend also rely on facts showing the two people intended to live in a marriage.
Some facts that would disprove this element might include:
- The absence of any writing agreeing to a marriage;
- The parties telling other people they are not married or not really married;
- Referring to each other at times by other titles like boyfriend/girlfriend, partner, fiancé, etc.;
- Completing legal or financial documents indicating one or both is single.
One of the most compelling facts disproving this element is when one or both alleged spouses tell people they are “not really married” or “married on paper” or drift between referring to each other as spouses and boyfriend/girlfriend. Texas courts have accepted a pattern of those statements as compelling evidence that the two people did not agree to form a real marriage.
Holding out as married to other people
The third element requires that the alleged spouses present themselves as married. This is commonly referred to as “holding out” as married. Texas courts indicate that the alleged spouses cannot create a secret common law marriage that nobody knows about. They must openly present as married. That can be from referring to each other as a spouse, filing documents as married, obtaining loans or bank accounts jointly as spouses, or identifying the other person as your spouse to receive employment benefits.
Disproving this element generally requires you to disprove any evidence that you referred to each other as spouses to other people, government agencies, or businesses. A single event might be enough to prove this element but one way to disprove this element is to present repeated instances where one or both alleged spouses told other people or entities they were not married at that time.
The three elements never co-existed
You can successfully disprove a common law marriage in Texas by winning that just one element never existed but you can also disprove a common law marriage by showing the three elements never existed simultaneously. All three elements have to exist in the same time to prove a common law marriage. You can disprove a common law marriage even if all three elements existed at some time as long as they did not each exist together at the same time. For example, you might agree to be married and hold yourselves out as married but not live together. If you then move in together but tell people you aren’t really married, then you might disprove the common law marriage ever existed.
What about when you had a common law marriage but you stop living together?
This is a subject of some confusion. People sometimes believe that you can be common law married but if you stop living together then the common law marriage stops or never existed. That is not true in Texas but it is rooted in misunderstanding Texas law. In Texas if two alleged common law spouses stop living together for two or more years, then Texas law presumes they were never married. Just presumes the common law marriage never existed. After all, if you gave up and stopped living together for a couple years, then that suggests there was never an agreement to form a permanent marriage.
Legal presumptions are not proof by themselves. This presumption makes the job of proving the common law marriage more difficult. The person asserting the common law marriage has to make a case for each element (existing simultaneously) that explains that the marriage existed and exists despite the long separation.
I was already married before the common law marriage
This is a high stakes defense to a common law marriage. Perhaps the person asserting the common law marriage can prove all three elements existed simultaneously but you were still married to somebody else (even common law married to somebody before) at the same time. In Texas legally you only get one marriage at a time. If you had a spouse from a prior marriage, who was still alive at the time, then you could not create a second marriage at the same time.
That might effectively defeat a divorce proceeding on the common law marriage; however, it does not mean you walk away free. If a common law marriage existed at the same time, then you may suffer criminal charges for bigamy. If the second spouse was truly unaware of the first marriage, that spouse can seek property division of community property acquired during the second marriage. You could get hit with two property divisions (one from each marriage) in a divorce.
Hire a Texas divorce attorney
As you can see, these situations are complex and fact-driven. This is a situation where an attorney’s skill at building and presenting a case usually decides the outcome of a case. Walking into either end of this argument without an attorney is a recipe for failure. Schedule a consultation with a divorce attorney right away. Your attorney can assess the situation, present you with probable outcomes and advise you of your best next steps.