There are a lot of misconceptions about common law marriage out there, and many of them are wildly incorrect as far as the law is concerned.
If you think you may be in a common law marriage or you have questions or concerns about the dissolution of a common law marriage, it’s time to consult with an experienced Killeen family law attorney who has extensive experience handling common law marriage in Texas divorce.
Texas Recognizes Common Law Marriage
The State of Texas does recognize common law marriages, but the legalities are quite exacting. While many people are under the impression that living together for a certain amount of time qualifies as being in a common law marriage, this is not the case in Texas – or anywhere else in the United States.
There is no requirement regarding how long a couple lives together in relation to establishing a common law marriage in Texas. However, all of the following requirements do apply when determining if a common law marriage has been established:
Both partners were at least 18 years old when they entered the common law marriage.
The couple reached an agreement between themselves that they were married.
The couple lived together in Texas as a married couple.
The couple represented themselves to others as a married couple.
Neither party to the common law marriage was married to someone else at the time it was created.
While the legal language used refers to a man and wife, this does not alter the fact that same-sex common law marriages are also recognized in the State of Texas. Once a common law marriage is established, it is the same as any other marriage.
Living Together as a Married Couple
The element of the common law marriage involving living together as a married couple means that you and your partner maintained a household together – the way married couples do. The only real requirement is that you live with one another under one roof and do the things that other married couples do.
Is Common Law Marriage Legal in Texas?
Texas is one of the relatively few states that recognizes common law marriages. The others include the following states:
Alabama
Colorado
The District of Columbia
Georgia – if the relationship was established prior to January 1, 1997
Idaho – if the relationship was established prior to January 1, 1996
Iowa
Kansas
Montana
New Hampshire – for inheritance purposes only
Ohio – if the relationship was established prior to October 10, 1991
Oklahoma – although the laws are conflicting
Pennsylvania – if the relationship began prior to January 1, 2005
Rhode Island
South Carolina
Utah
While establishing a common law marriage in Texas isn’t as simple as demonstrating that you lived together for a certain number of years, it is not difficult to establish if you and your partner considered yourselves married and let other people know it. Work closely with a skilled Killeen family lawyer to learn more about how you can prove you were in a common law marriage.
How Do You Hold Yourself Out as Married in Texas?
Proving that you and your common law spouse considered yourselves married and held yourself out as such – or represented yourselves as a married couple to other people – relates to evidence, which can take any of the following primary forms:
Living together
Telling other people that you were married
Using the other’s last name
Filing your taxes jointly as spouses or both of you filing as married people filing singly
Making joint purchases as spouses
Signing leases or other legal documents as spouses
Including the other on your health insurance policy
Including the other as a beneficiary on a life insurance policy
Applying for public benefits and listing yourselves as spouses
Having children together
Simply referring to yourselves as a married couple on an occasion or two may not rise to the level necessary to prove a common law marriage, but when it’s coupled with other actions from the list above, it may.
How Long Can I Ignore the Issue of Separation?
If you and your common law partner break up, you may think that is the end of that, but the truth is that you’ll need to dissolve the relationship the same way you would in a divorce – unless you’re both in total agreement on the matter. Even if you agree, there is no guarantee that your ex won’t attempt to prove the common law marriage at a later date.
However, if you and your common law spouse separate from one another for at least two years and neither of you attempts to prove your common law status in the interim – the State of Texas will assume that there was no legitimate attempt to establish a common law marriage in the first place, which means that your relationship is likely no longer a common law marriage.
The Terms of Divorce
If you are in a common law marriage and you and your partner break up, you’ll need to address the same terms you would in any other divorce:
If you share children, you’ll also need to address your child custody arrangements and child support, but these terms apply to every couple who shares children and breaks up – whether married or not.
The Division of Your Marital Property
Just like in any other divorce, your financial rights can hang in the balance in a Texas common law divorce, mostly because of the division of marital property. Marital property in this context refers to anything you and your common law spouse came to own after you established this legal union.
With a traditional marriage, there is no question about the date the legal relationship began, but things can be very different with a common law marriage.
The Date Your Common Law Marriage Was Established
Anything either of you owned prior to the common law marriage will remain the separate property of the original owner. As such, the date the common law marriage began is a very important – and often contentious – matter.
It’s also important to note that the line between separate property and marital property is not completely solid. For example, when separate and marital assets are commingled, it can blur the distinction between the two. Further, the amount that a separate asset increases in value is generally considered marital property.
In other words, the division of marital property can become very complicated very quickly. As such, you should make sure that your financial rights are protected by working closely with a skilled Killeen divorce attorney.
What’s Yours Is Ours
Once the marriage relationship is established – whether traditional or common law – the marital property designation applies to any asset that you, your partner, or both of you together come to own. This designation is regardless of who made the purchase, whose name is on it, and who uses the asset.
In other words, if you buy a car that only you use and that you both recognize as being your car during the course of your common law marriage, the car is, nevertheless, part of your marital estate and will need to be addressed in the division of your marital assets.
If You Separate
If you and your partner separate during the course of your common law marriage, it can throw a wrench into the division of your marital property. The State of Texas doesn’t have a mechanism for legal separation, which means that any assets that either of you accrues while you are apart are marital in nature and will need to be included in the property division.
Alimony
While alimony does not apply in every divorce situation, it is considered appropriate when the divorce leaves one spouse with too few assets and too little income to continue supporting themself at or near the same standard of living achieved during the marriage – when the other spouse has the financial ability to help. This term applies to both traditional and common law divorces.
Alimony – or spousal maintenance – is generally ordered for an amount and a duration that allows the recipient the opportunity to gain the education or job training necessary to become more financially independent.
The Matter of Inheritance
It’s also important to recognize that a common law marriage can play a pivotal role in inheritance. If your partner dies while you are in a valid common law marriage, you’re entitled to your “just and right” division of the marital assets. Further, if your common law spouse has no will in place, you’ll be entitled to a portion of their estate through Texas’s laws of intestacy.
Without marriage – whether common law or traditional – you won’t be entitled to any of your partner’s assets unless they address the matter in their will.
A Declaration of Informal Marriage
The State of Texas recognizes common law marriages and allows couples to make it official with a declaration of informal marriage. Once you and your partner sign the declaration and file it with the county clerk, it serves as legal proof of your common law marriage. At this point, you are considered married for all legal purposes.
If You Move to a State that Doesn’t Recognize Common Law Marriages
Things may seem even more complicated if you move from a state like Texas to a state that doesn’t recognize common law marriages, such as our neighbor to the east, Louisiana. The truth is that every state recognizes the marriages established in every other state, and this includes states that don't, themselves, recognize common law marriages.
In other words, your move won’t alter the fact of a common law marriage that was established in Texas, but a common law divorce could get exceptionally tricky. Move forward with the guidance of a seasoned Killeen divorce lawyer.
The Seven-Year Myth
One of the most common misconceptions about common law marriages in this country is that living together as a couple for a specific amount of time automatically establishes a common law marriage. For some reason, the amount of time that most people have landed on is seven years, but there is absolutely no truth to this ongoing myth. This requirement does not apply anywhere in the United States.
There Is No Such Thing as a Common Law Divorce
Many people believe that a common law divorce is somehow less involved or less official than a regular old divorce. However, they are one and the same. If you are facing a common law divorce, your rights are on the line, and you need skilled legal guidance in your corner. Contact a Killeen family lawyer to ensure that your rights are protected.
Same-Sex Common Law Marriages Can Predate the 2015 Law that Legalized Them
Although same-sex marriages did not become legal in the State of Texas until 2015, this does not affect the date of your common law marriage’s inception. If you began living together as a married couple prior to this date, your common law marriage date may predate 2015 for the purposes of property division and other financial matters in the event of a divorce.
Common Law Divorce Is Complex
Every divorce is legally complex, but common law divorce brings new issues to the table. For example, if your partner wants to fight you on the issue of being in a common law marriage in the first place, you will need to prove the matter to the court, and this is before you even get started on the terms of your divorce.
In other words, your financial and parental rights are in the crosshairs, and working closely with a trusted Killeen family law attorney is always to your advantage.
An Experienced Killeen Divorce Attorney Can Help
Brett Pritchard at The Law Office of Brett H. Pritchard – a well-respected Texas family law group in Killeen – is a seasoned divorce attorney who recognizes how a divorce can affect your financial and parental rights. We have decades of impressive experience helping clients like you obtain favorable divorce terms, and we’re here for you, too. Learn more by contacting us online or calling us at (254) 781-4222 today.