Myths about common-law marriage abound. For example, urban legend says if you live with a romantic partner in Texas for at least 7 years, you are common-law married. Others believe if you have children with someone and live together, you are common-law married. Fortunately for many Texans, neither of those statements is true. While Texas is one of a few states that still recognizes the doctrine of common-law marriage (also known as informal marriage), it is not favored by courts and can be difficult to prove. See Russell v. Russell, 865 S.W.2d 929, 931 (Tex. 1993).
Common-law marriage claims in Texas family law are generally alleged in a petition for divorce. A person claiming common-law marriage must plead and prove three elements: (1) the parties agreed to be married; (2) the parties lived together in Texas after agreeing to be married; and (3) the parties represented to others they were married. TEX. FAM. CODE. § 2.401(a)(1)1. All three elements must exist at the same time. See, e.g., Small v. McMaster, 352 S.W.3d 280, 282-83 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). Common-law marriage cases are very fact-intensive, meaning the outcome of a case hinges on very specific details.
If the above leaves you with more questions than answers, you are not alone. Here are some Frequently Asked Questions about informal or common-law marriage.
1. Why does it matter whether someone is common-law married?
Texas is a community property state, meaning when a couple is married, any assets or debt they acquire are generally owned by the “community estate.”2 When a married couple divorces, the community estate is divided between the spouses, regardless of whose name is on the title to each asset or whose earnings purchased the asset. For example, if a couple purchases real estate during marriage, that real estate is generally community property, subject to a division between spouses in a divorce – even if it is only in a wife’s name.
In today’s world, many couples build lives together without ever having a marriage ceremony or getting a marriage license. They have children, make money, and acquire debt and assets. When an unmarried couple ends their relationship, assets and debts generally go to the person whose name is associated with the debt or asset. Real estate goes to whoever is on the deed. Vehicles go to whoever is on the title. If there is a common-law marriage, though, debt and assets acquired during the common-law marriage are generally part of the community estate, divided between the two spouses.
The bottom line? A successful common-law marriage claim means the respondent, who may have thought he or she was just ending a dating relationship until being served with a divorce petition, stands a good chance of losing about half of his or her assets.
2. What is an “agreement to be married”?
Alleging common-law marriage is not enough. A proponent of common-law marriage must first prove the parties intended to have a present, immediate, and permanent marital relationship. See Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App.—Houston [1st Dist.] 1991, writ denied). An agreement to be married in the future is not sufficient to support a common-law marriage. Often in common-law marriage cases, the couple becomes engaged and discusses future marriage, however, a promise to marry in the future does not support common-law marriage.
Courts can consider the circumstances, including circumstances indicating the couple represented themselves as married, to determine whether the parties agreed to be married. However, if direct evidence shows there was no agreement to be married, circumstances suggesting an agreement will not support the finding of an agreement to be married.
For example, in the Fuller v. DeFranco case, the parties signed two sworn statements with third parties stating they were informally married and the man represented the woman as his wife to others (including the military and the Department of Veteran’s Affairs). However, the parties filed federal income taxes as unmarried and the woman listed herself as single on a Federal Student Aid Application and real estate documents. Fuller v. DeFranco, No. 05-19-01203-CV-2020. 2020 Tex. App. LEXIS 8945 (Tex. App.–Dallas Nov. 18, 2020, no pet.). The court held there was no agreement to be married because the documents listing the parties as married were created to obtain benefits only available to spouses and did not reflect an agreement. Id. at 24.
As illustrated above, when considering common-law marriage claims, courts take evidence the parties represented themselves as married less seriously if the couple made such a representation to obtain benefits. For example, unmarried couples will often have joint insurance policies in which they claim to be married to get lower insurance rates. Such self-serving representations are less probative than other evidence.
3. What does it take to prove a couple represented themselves as married?
There can be no secret common-law marriage. To prove a couple represented themselves as married (or “held themselves out” as married), the proponent of common-law marriage must show more than occasional references to each other as husband and wife. See, e.g., In the Interest of N.A.F., No. 05-17-00470-CV, 2019 Tex. App. LEXIS 947, at *11 (Tex. App.—Dallas Feb. 11, 2019, no pet.). The question is whether the couple had a reputation in the community or public eye for being married. Id.
For example, in the Danna v. Danna case, the proponent of common-law marriage produced evidence of four occasions on which she or her partner introduced each other as husband or wife. She also introduced an AARP enrollment form where the man listed her as his wife and for which he admitted signing. However, such evidence was still not enough to prove the parties represented themselves as married. Danna v. Danna, No. 05-05-00472-CV, 2006 Tex. App. LEXIS 2368, at *1-2 (Tex. App.—Dallas 2006, pet. denied).
Certain facts are often considered in determining whether a couple held themselves out as married. Courts will consider tax returns; did the couple file tax returns as single or married? Courts also consider other paperwork such as real estate closing documents (that describe a purchaser as “a married woman/man” or “a single woman/man,”) insurance applications, employment documents, and other documents concerning sale or purchase of assets. Another fact that often comes up in common-law marriage cases is whether the parties wore wedding rings. While it is not dispositive, if both people wore rings on their wedding ring finger, that may be considered some evidence of “holding out.” Courts also consider witness testimony, especially of disinterested witnesses (in other words, testimony of those that have no “dog in the fight”). Because the inquiry is so fact-intensive, there is no single “magic fact” one can use to prove common-law marriage (absent a valid Declaration of Informal Marriage).
4. This sounds expensive. How can I avoid a common-law marriage claim?
While common-law marriage is not easy to prove and courts disfavor it, fighting a common-law marriage claim can be quite expensive. Steps can and should be taken to prevent a common-law marriage claim, especially in situations where a couple cohabitates and one party has substantially more assets. Cohabitation Agreements can assist a dating couple in openly discussing and agreeing upon expectations and obligations before moving in together, including expectations around marriage. A well-drafted Cohabitation Agreement is a powerful weapon against an informal marriage claim.
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1. Informal marriage can also be proven through a declaration of informal marriage filed pursuant to the procedures in the TEX. FAM. CODE. § 2.401(a)(1).
2. There are exceptions to this rule, which should be discussed with an attorney.
