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Common Law Marriage Myths (Yes, You Need a Divorce!)

Man and woman walking away from each other, the woman taking a house in her purse, the man going empty-handed

Unmarried couples living together used to be rare, but it has been a long time since cohabitation outside of marriage raised any eyebrows in many parts of the country. Some couples live together before getting married. Others decide to live together with the intention of staying in it for the long haul, except without ever getting married. When a couple lives together without getting married, does that create any sort of legal status for the couple? Texas divorce lawyers get this question from time to time. Living together is a requirement for a common law marriage, also known as an informal marriage, but it is far from the only requirement. Common-law marriage is the subject of many myths and misunderstandings. It is not, however, as mysterious as people might think.

What Is Common Law Marriage?

In the ancient world, marriage was often an entirely private arrangement between spouses and their families. Governments and religious institutions in Europe began to get involved in marriage, and to require formal documentation and ceremonies, in the Middle Ages. Common-law marriage originated in medieval England, at a time when people who were authorized to officiate weddings were not always able to travel. Rather than wait until a priest or official could arrive in person, people could enter into marriage on their own.

England did away with common-law marriage in a law enacted in the mid-18th century, but that law did not apply to England’s overseas colonies. Common-law marriage therefore persisted in North America. Most U.S. states have abolished the practice in the 244 years since independence, but a few states still recognize common-law marriage. Texas is one of those states.

What Are the Requirements for a Common Law Marriage in Texas?

The Texas Family Code establishes requirements for formal marriage, including a marriage license and a ceremony. It also defines the requirements for a common-law marriage. Contrary to certain pervasive myths, living together is not enough to establish a common-law marriage.

Texas law establishes two prerequisites for a common-law marriage:

  • Both spouses must be at least eighteen years of age; and
  • Neither spouse may be married to someone else, formally or informally, at the time they enter into the common-law marriage.

If the spouses meet the above criteria, a valid informal marriage exists in Texas when either:

  • Both spouses have signed a “Declaration of Informal Marriage”; or
  • The spouses agreed to be married to one another, lived together in Texas as a married couple after making this agreement, and held themselves out to others as a married couple.

The date of the marriage is considered to be the date when they agreed to be a married couple. There is no minimum amount of time required for the couple to live together, as long as they have agreed that they are married and have stated so publicly.

Only eleven states, including Texas, and the District of Columbia recognize common-law marriages. States that do not have common-law marriage will recognize a common-law marriage that is valid under another state’s law. For example, if a couple agrees to be married while living in Texas, and then lives together in this state and holds themselves out as married, other states will recognize their marriage as valid because it is valid under Texas law. If the couple does all of these acts in Louisiana, which does not have common-law marriage, Texas will not recognize their marriage because it is not valid under Louisiana law.

How Does Divorce Work for a Common Law Marriage?

Once a couple meets the legal requirements for a common-law marriage in Texas, their marriage is just as valid as that of a couple that obtained a license and had a ceremony. Most property obtained after the date they agreed to marry is legally considered community property. Dissolving a common-law marriage requires a divorce decree signed by a judge, just like a formal marriage.

An important procedural difference between dissolution of a common-law marriage and a formal one is that the person filing for divorce in a common-law marriage might have to prove the existence of valid marriage. A court will presume that a formal marriage is valid, unless a spouse produces evidence to the contrary. In a suit to dissolve an informal marriage, the spouse who filed the petition must provide the marriage’s validity unless the other spouse concedes that the marriage is valid. From there, the case may proceed much like any other divorce case.

Stacey Valdez is a board-certified family lawyer who practices in Clear Lake and the rest of the greater Houston, Texas area. Our clients and their families are our top priority at Stacey Valdez & Associates. We are dedicated to helping our clients through difficult ordeals like divorce and child custody disputes with tireless advocacy, compassion, and dignity. Please contact us online, or give us a call at (281) 218-0900 today to schedule a confidential consultation to see how we can help you. Your first meeting with us is free in most cases.

Categories: Common Law Marriage
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