Frequently Asked Questions Regarding Common Law Marriage and Divorce

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Divorce Lawyer in Spring TX – The following are answers to some of the most frequently asked questions about Texas common law marriage and divorce. The answers are general in nature and are designed to help you better understand common law marriage and divorce law.

The law in the individual circumstances of your case may vary and may affect the results in your case. Frequently asked questions regarding divorce, child custody, child support, property division, and alimony will be covered in subsequent blogs.

WHAT IS AN INFORMAL MARRIAGE OR “COMMON-LAW MARRIAGE”?

An informal marriage or “common law marriage” has the same legal effect as a ceremonial marriage. The way its defined in the Texas Family Code Section 2.401 is by giving examples of proof of a common law marriage including:

(a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:

(1) a declaration of their marriage has been signed as provided by this subchapter; or

(2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.

In law school my law professor in family law class referred to marriages with a license as a ceremonial marriage and those without as either a “common law or informal marriage.”

Under Texas Law a “common law or informal marriage” is created only if certain factual and legal requirements are met.

ARE WE COMMON LAW MARRIED BECAUSE WE LIVE TOGETHER?

No, you are not common law married solely because you live together. In Texas three elements must be present to form a Common Law Marriage:

1. First, you must have “agreed to be married.”
2. Second, you must have “held yourselves out” as husband and wife.
3. Third, you must have lived together in this state as husband and wife.

HOW DO I PROVE THAT WE ARE INFORMALLY MARRIED?

Family Law Attorney Houston – As mentioned above an informal or common-law marriage is a marriage between two people who have not obtained a marriage license and participated in a marriage ceremony and under Texas Family Code Section 2.401:

1. Agree to be married
2. Live together in Texas as husband and wife
3. Hold themselves out to others in Texas as husband and wife and

Agreement to be Married

One of the elements to establish a common-law marriage the parties must agree to be married.

This means that in an evidentiary hearing the spouse alleging a common-law marriage will need to put on evidence that the parties intended to have a present, immediate, and permanent marital relationship wherein they both agreed to be husband and wife.

An agreement to get married at some later time in the future is not sufficient to establish an agreement to be married. If there is no written agreement to be married, your actions and the actions of the other party can be used to prove that there was an agreement to be married.

Living Together

The next element need to establish a common-law marriage, is that the parties must have lived together in Texas as husband and wife.

Texas case law states that to meet the element of living together as husband and wife, you must demonstrate that you maintained a household and did things that are commonly done by a husband and a wife.

There is no minimal number of days you must have resided together in Texas to meet this requirement.

Holding Out

Spring Divorce Lawyer – The final element needed to establish a common-law marriage is that parties must have told other people in Texas that they were married.

This can be accomplished either by:

1. Spoken words or
2. Actions and conduct by each person may be enough to fulfill the requirement of holding out.

In other words, there can be no secret common-law marriage.

HOW LONG DO WE HAVE TO LIVE TOGETHER TO BE COMMON LAW MARRIED?

There is no minimal number of days you must have resided together in Texas to meet this requirement.

IS THERE A STATUTE OF LIMITATIONS ON ESTABLISHING A COMMON-LAW MARRIAGE?

No. Contrary to what some people believe, there is not statute of limitations for establishing a common-law marriage. Provided that the elements are met that :

1. There’s an agreement to be married
2. That the couple tells other people about it and
3. The couple could live together for even one day

This could be enough to establish a common-law marriage

DO I STILL NEED TO GET A DIVORCE IF WE ARE COMMON LAW MARRIED?

Spring Divorce Lawyers – An “informal or common law marriage” is treated the same as ceremonial marriage.

One difference is that if one of the spouses contest its existence than an additional step will need to be taken during a divorce to prove the existence of the common law marriage … Continue Reading