Common Law Marriage


Under Texas law, a couple may be considered common law married even if they have never taken part in a formal marriage ceremony if they can prove certain elements to a court. They will then be afforded the same benefits as those who obtained an official marriage certificate and had a marriage ceremony. That also means they will be required to get an official legal divorce if they separate. If you were online searching to see if you need to hire a common law marriage divorce attorney, you should give us a call.

Do I Need to Get a Divorce for a Common Law Marriage Breakup?

When a couple separates, a court has no authority to make any decisions like property division, child custody, child support or whether one party can collect spousal support from the other unless the court first determines there was a common law marriage.

How to Prove There Was a Common Law Marriage

One way to prove a is for the couple to file with their local county court a document called a Declaration of Marriage. Another way is to prove all of the following three elements to the court:

  • The couple had an agreement to someday get married.
  • After they made the agreement, the two people lived together in the state of Texas.
  • They represented themselves to other people as being married.

The party wanting to prove the existence of a marriage will need to present evidence of the existence of each one of the three elements. The party arguing there never was a common law marriage will try to prove that at least one of the three elements never existed. Also, it is important to note that the number of years the couple lived together or whether or not they had children together are not factors that determine whether or not there was a common law marriage.

Evidence to Present to the Court as Proof There was a Common Law Marriage

Evidence courts will use in deciding whether or not a common law marriage existed include:

  • A rental or lease agreement in the names of both parties referring to them as husband and wife.
  • Joint tax returns filed as husband and wife.
  • An insurance policy that names one of the parties as the beneficiary spouse.
  • A will that mentions the other person as a spouse.
  • Credit card or car loan applications listing the couple as a spouse.
  • Evidence they introduced themselves as married or held themselves out as married when with other people.

Courts have found there was a common language based upon the testimony of only one witness who stated that one person introduced the other one as “my spouse,” and the one being introduced acted as though that was true. This is why acquiring the counsel of an experienced common law marriage lawyer is so important. Dissolving a common law marriage is just as complex as that of a conventional marriage, requiring a complete divorce.

What is the Difference Between Common Law Marriage and Ceremonial Marriage in Texas?

There are two ways of being married in the State of Texas – Ceremonial Marriage or Common Law Marriage.

Ceremonial marriage is pretty self-explanatory. The couple gets a marriage license, waits at least three days, gets married, then files the marriage license.

A common law marriage is not as straight forward. The concept of the common law marriage comes from our old west days, when we had circuit judges who performed ceremonies, but often would not come to an area for months at a time. People didn’t want to wait that long to be married. What came of that practice is a three prong test to prove a common law marriage.

  • the parties agree to be married. This is not a general agreement, but rather an agreement that the two are married as of a specific date. If the parties celebrate an anniversary every year to commemorate the day they decided to be man and wife, the anniversary comes from the agreement. This part of the requirements of common law marriage is the most often disagreed-upon factor because so many times there is just no evidence on either side to support it. The proof ends up being the testimony of both parties and whomever the judge believes will win the issue.
  • The parties hold out to the world that they are married. Holding out can come in many forms. They might have filed joint tax returns, had a joint bank account as husband and wife, or registered at a hotel as being married. In some cases, it might just be one party introducing the other at a party as their spouse and the other party not correcting it.
  • The parties have cohabitated. There is a misconception that people must live together for 30 to 90 days before they may be common law married. The fact is, cohabitating for one night can be enough to create a common law marriage.

So is there a difference between getting divorced from a ceremonial marriage and a common law marriage? The answer is yes and no. If the parties are married with all of the requirements of a ceremonial marriage, they can be separated for decades before a divorce starts and still be married without question. There can be a question if the same happens with two people who were married by common law. The law presumes that if a suit for divorce is brought more than two years after the parties stop living together as husband and wife, there was no marriage. That is only a presumption and it can be overcome. In fact, the presumption can be overcome by anyone – the parties, their children, a creditor, the IRS.

What if the parties had a ceremonial marriage, but the marriage license was never filed with the County? Technically, there is no ceremonial marriage because all of the requirements have not been met. That leaves the couple with a common law marriage. In that case, the date of marriage is pretty easy to pinpoint, since there was indeed a ceremony. Holding out to the world is also likely easy if others were present at the ceremony and after to witness them acting as husband and wife. After that, if the parties cohabitated, a common law marriage will likely be found.

Contact a Divorce Lawyer Experienced with Common Law Marriage

If you live in Texas and want to either prove you had a common law marriage, or want to fight against it and prove there never was such a marriage, contact our team today. You need a common law marriage lawyer experienced with complex divorces between couples who have never had an official ceremony. Jeff Anderson has more than 20 years of experience working in all aspects of family law. He will review the facts of your relationship and common law case and advise you on the best way to proceed.

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