Monday, July 22, 2019

Informal Marriage in Texas


In Texas, it is entirely possible to find yourself trapped in the confines of a “common law marriage” with your partner without having walked down the aisle or having contributed thousands of dollars into the multi-billion-dollar wedding industry. A common law marriage arises when two people (1) agree that they are married; live together in Texas as husband and wife; and (3) hold themselves out as being married.   Additionally, couples may not be under the age of 18, related to each other or married to anyone else.  Once a common law marriage has been established, it has the same legal effect as any ordinary ceremonial marriage.

"Holding Out" as Married

There are several ways through which couples can hold themselves out to be married, including but not limited to:

  1. couples signing a lease, mortgage documents, credit card applications or other agreements together;
  2. couples filing their taxes jointly; and
  3. couples introducing each other as spouses or publicly announcing to other people that they are legally married.

Even holding yourself out as married just once can be sufficient.

Generally, there is no definitive time period that couples must be together to assert common law marriage. However, if a proceeding to establish common law marriage is not commenced before the two-year anniversary date on the date the couple ceased to live together, there exists a rebuttable presumption that the parties never entered into an agreement to be married in the first place. Because common law marriages have the same effect as formal marriages, the only way to dissolve a common law marriage is to seek a formal divorce. The party filing the divorce proceedings typically has the burden to the prove the existence of a common law marriage.

Avoiding the Trap of Common Law Marriage

The following list identifies a few ways through which couples can avoid falling into the trap of common law marriage:

  1. Sign a cohabitation agreement-draft and sign an agreement with your partner that identifies each person’s interests and assets along with a clause that states that you are not agreeing to be married.
  2. Refrain from signing agreements as “husband and wife.”
  3. Have separate bank accounts and credit cards. File taxes separately.
  4. Be careful with what you post, how you introduce one another to other people, and even how you act on social media.

Once a common law marriage is established, couples cannot agree to not be married anymore. Because the only way to dissolve a common law marriage is through divorce, (which prompts the court to divide the community property (a couple’s assets and liabilities)) it is important that a couple take the extra precaution necessary to assess the nature of their relationship and tread carefully in advertising their relationship to the rest of the world via social media and other public mediums.  

Return to list.