The State of Texas does recognize common-law marriages. It’s called an Informal Marriage and is covered under the Texas Family Code in Sections 2.401 through 2.404.
The other type of marriage recognized by the State of Texas is a Traditional Marriage. This is what most people think of when thinking of marriage. It typically has a ceremony with some kind of wedding official, takes place in a church, courthouse or other venue, and witnesses are present.
Are You in a Common-Law Marriage?
There are three requirements that must be met in order to be in a common-law marriage.
1) Both parties agree to be married.
2) Both parties live together as husband and wife.
3) Both people “hold out” to the public that they are married.
The last one can be tricky. Holding out means you are signaling to others that you are married. Some examples of holding out to show you are married can include: wearing wedding bands, filing joint taxes naming the other person as your spouse, or changing the his or her last name. The purpose for requiring people to hold out is so that there can not be a secret marriage.
It’s also important to note that there is no time requirement. There are common misconceptions out there that if a couple lives together for a certain amount of time, for example six months or seven years, then they are automatically married through common law. That’s not true. There is no time requirement.
Another common misconception is that if you have children together, then you are automatically married through common law. That is not true.
Legal Benefits of Being in a Common-Law Marriage
The benefits to being in a common-law marriage are really the same benefits that you would receive through a traditional marriage, without the large wedding expense! You will accumulate community property and community debt the same as through a traditional marriage.
Another key benefit of being in a common-law marriage involves inheritance. If you are in fact married through common law, then you have the same rights of inheritance from your spouse as a traditional marriage. Likewise, your common-law spouse has the same rights of inheritance regarding your estate.
Other benefits of being in a common-law marriage involve having rights and duties pertaining to any children of the marriage. Parents already have rights and duties to their children. However, if the couple decides to separate it can be easier for parents who are married to have their rights and duties established regarding their children, than it is for a parent who was never married to the other parent.
Ending a Common-Law Marriage
Common law marriages end the same as traditional marriages, that is, by going through the divorce process. In ending a common-law marriage, one of the spouses may wish to divide the community assets and debts, and the other may not. The person who wants the marriage to exist has the burden of proving that the common-law marriage was indeed valid.
It’s up to the Court to determine whether or not a common law marriage exists. The Court will review the them on a case-by-case basis. If the Court determines that a common-law marriage exists, then the couple cannot end the marriage without getting divorced.
Contact Hayes, Berry, White & Vanzant
If you believe that you are in a common law marriage and need a divorce, then contact the family law attorneys at Hayes, Berry, White & Vanzant. Give us a call to set up a consultation at (940) 387-3518, or contact us here.