Common law marriage is not the term recognized by the State of Texas. It’s called an Informal Marriage and is covered under the Texas Family Code in Sections 2.401 through 2.404.
For the purposes of this article, however, we will still use the familiar term, common law marriage, to refer to this arrangement.
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. Exchanging rings and reciting wedding vows are often a part of the ceremony.
There are four requirements that must be met in order to be in a common law marriage in Texas.
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 his or her last name.
Another way people hold themselves out to be married is filing jointly for credit as a married couple.
You need to be aware that even holding yourselves out to be married once, particularly on a formal document, could possibly classify your relationship as a common law marriage in Texas.
The purpose for the “holding out” aspect is so that people cannot at one point claim to be married, and later claim they are not.
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’s not true either.
It’s also not guaranteed that property bought by a common law spouse will be split fifty-fifty in the case of separation. It can become complicated.
Therefore, let us quickly mention that it is advisable for homes to be purchased under a co-ownership agreement. This insures that both names appear on the deed as purchasers and both partners will benefit from increases in value.
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 in Texas 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 in Texas 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.
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 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.
We are happy to talk with you and answer any questions you may have about common law marriage in Texas.
If you believe that you are in an informal or common law marriage in Texas and need a divorce, then contact the family law attorneys at Hayes, Berry, White & Vanzant.
Click here to set up an appointment with our expert on common law marriage in Texas.
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