Common Law Marriage in Texas | (Codified in the Texas Family Code: Marriage Without Formalities (§2.401 – §2.405) http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.2.htm
In Texas, common law marriage, officially referred to as “marriage without formalities,” is recognized under specific circumstances codified in the Texas Family Code (§2.401 – §2.405). Despite the language in the Texas statute specifying a common law marriage as between a man and a woman, the landmark U.S. Supreme Court case Obergefell v. Hodges has extended marriage rights to same-sex couples across all states. This means that the principles governing common law marriage in Texas apply equally to same-sex couples as they do to opposite-sex couples. Understanding these principles and requirements is crucial, as a common law marriage in Texas holds the same legal weight as a formal, ceremonial marriage.
Factors to Prove a Common Law Marriage in Texas
Elements of Common Law Marriage in Texas
- Unmarried and of legal age
- Agreement to be married
- Living together in Texas as husband and wife
- Telling other people about the marriage
- Within two years of separating
To establish a common law marriage in Texas, specific criteria must be met. These criteria ensure clarity in determining whether a legal marital relationship exists and help prevent disputes or ambiguities in legal proceedings. These elements form the legal framework for proving the existence of such a marriage.
Unmarried and of Legal Age
Both individuals must be at least 18 years old to enter into a common law marriage in Texas. Unlike some contractual agreements where parental consent might suffice for minors, Texas law explicitly prohibits individuals under 18 from forming a common law marriage, even with parental approval. Additionally, neither party can be legally married to someone else at the time of entering into the common law marriage. If either individual is still married, any claim to a common law marriage would be invalid until the previous marriage is formally dissolved through divorce or annulment.
Agreement to Be Married
The foundation of a common law marriage is the mutual agreement between both parties to be married. This agreement may be verbal but must be clear and intentional. Unlike cohabitation, which simply involves living together, a common law marriage requires an explicit understanding that the parties consider themselves married. Ambiguity or a lack of mutual consent undermines any claim to a common law marriage.
Living Together in Texas as Husband and Wife
Sharing a residence is a necessary component of common law marriage, but it alone is insufficient. The couple must live together in Texas while maintaining a relationship akin to that of a married couple. Occasional overnight stays or cohabitation without presenting themselves as married does not meet this requirement. Additionally, having children together does not automatically establish a common law marriage.
Telling Other People About the Marriage
To satisfy this criterion, the couple must represent themselves to others as being married. This can include introducing each other as “husband” or “wife,” filing joint tax returns, or applying for credit together. Even a single instance of publicly declaring the marriage can meet this requirement if the other elements are fulfilled. Actions or statements that align with societal norms of marriage help solidify the claim.
Within Two Years of Separating
If the couple separates, either party must initiate legal proceedings to establish the existence of a common law marriage within two years. Evidence such as shared financial accounts, joint tax returns, or testimony from friends and family can support these claims, providing crucial documentation to the court. Failing to do so creates a presumption that no marriage existed, making it significantly harder to prove the relationship retroactively. Courts will scrutinize the evidence to determine whether a marital agreement was genuinely in place.
Recognition of the Common Law Marriage in Texas
In Texas, a common law marriage carries the same legal implications as a ceremonial marriage. This includes community property rights, inheritance entitlements, and obligations related to spousal support, ensuring that informal unions are treated with the same legal seriousness as formal ones. This includes responsibilities and rights related to property, debt, and familial obligations. For couples who wish to formalize their union, Texas provides an option to file a Declaration of Informal Marriage with the County Clerk. This formalization creates a public record of the marriage, providing legal clarity and simplifying matters in the event of divorce or inheritance issues.
When considering moves to other states, it’s essential to note that not all states recognize common law marriages. A common law marriage validly established in Texas may or may not be upheld elsewhere, depending on the state’s laws. Consulting with a family law attorney in the relevant state is advisable for couples in such situations.
Divorce After Common Law Marriage
Dissolving a common law marriage in Texas follows the same legal process as ending a ceremonial marriage. However, proving the marriage existed can introduce additional challenges, requiring the petitioner to present compelling evidence of mutual agreement, cohabitation, and public representation of the marriage. The individual filing for divorce (the Petitioner) must first prove the existence of the marriage. This involves demonstrating that all elements of common law marriage were met. Without this proof, the court may not proceed with divorce proceedings.
If the couple has children, property, or shared debts, a formal divorce is necessary to resolve these matters. The court will address issues such as custody, child support, property division, and debt allocation. Failure to obtain a formal divorce after a common law marriage can lead to significant complications, including potential accusations of bigamy if one party remarries without legally dissolving the prior relationship.
Abuse and Domestic Violence in Common Law Marriage
Being in a common law marriage does not limit a person’s ability to seek protection from domestic violence. Protective orders are accessible to anyone in a domestic relationship who faces immediate threats or harm, reinforcing the state’s commitment to safeguarding all individuals, regardless of marital status. Texas law allows individuals in any domestic arrangement, including common law marriages, to request a protective order. This protection is available for individuals who have been subjected to violence or credible threats of violence by their partner. Legal remedies exist to ensure the safety and well-being of individuals in abusive relationships, regardless of marital status.
Understanding the intricacies of common law marriage in Texas is critical for individuals navigating family law matters. Whether seeking to prove a marriage, formalize it, or dissolve it, consulting with an experienced family law attorney like Robert Von Dohlen can provide clarity and guidance tailored to each unique situation.
Texas Common Law Marriage FAQ
What are the tax implications of common law marriage in Texas?
For tax purposes, a common law marriage in Texas is treated the same as a ceremonial marriage. Common law spouses can file joint tax returns, which may offer certain tax benefits such as lower overall tax rates or eligibility for specific deductions and credits. However, filing jointly also means sharing responsibility for any tax liabilities. To file as married, the couple must ensure that all elements of common law marriage have been met and be prepared to provide evidence if their marital status is questioned by the IRS. Seeking advice from a tax professional can help navigate these implications and ensure compliance with federal tax laws.
What is a common law spouse entitled to in Texas?
A common law spouse in Texas is entitled to the same rights and responsibilities as a spouse in a ceremonial marriage. This includes community property rights, meaning that assets and debts acquired during the marriage are subject to division upon divorce. Common law spouses may also be entitled to spousal support, inheritance rights, and decision-making authority in medical or legal situations involving their partner. However, these entitlements hinge on the ability to prove the existence of the common law marriage. Consulting with an experienced family law attorney can help navigate these rights and ensure proper documentation is in place.
How long do you have to be together for common law marriage in Texas?
There is no specific time requirement for living together to establish a common law marriage in Texas. What matters is the fulfillment of the three critical elements: mutual agreement to be married, living together as husband and wife, and representing the relationship to others as a marriage. While the duration of cohabitation may support a claim, it is not a determining factor. The court focuses on the intent and actions of the couple, rather than the length of time they have lived together.