Common-law marriages work just like any other marriage in the State of Texas. The trick is identifying if you’re in a common-law marriage to begin with and proceeding from there. We’ve all heard the old yarn that if you’ve been living together for a certain amount of time, you’re in a common-law marriage, but that is not how the law works in Texas.
Having a better understanding of how a common-law marriage is established will help you better understand your own situation. If you have questions or concerns about whether or not you’re in a common-law marriage, consulting with an experienced Killeen family law attorney is the best course of action.
If You Are in a Common-Law Marriage, You Are Married for All Legal Purposes
The most important thing to know about how common-law marriages work is that if you are in a common-law marriage, it is legally the same as a traditional marriage. If your common-law marriage ultimately doesn’t work, you’ll need to obtain a divorce in order to end the legal contract formed. This process involves resolving each of the divorce terms that apply:
Child custody arrangements, including parenting time
Property division
Alimony
The point here is that there is no shortcut to divorce in common-law marriages, which makes paying attention to the details key.
Are We in a Common-Law Marriage?
To be in a common-law marriage, you must have participated in the process. It’s not something that simply happens to you. However, if you’re not aware of the requirements, it is something that could conceivably happen to you unwittingly. The requirements involved in the State of Texas include these factors:
You and your partner agreed between yourselves that you were a married couple.
You and your partner lived together as a married couple.
You and your partner represented yourselves as a married couple to others.
These requirements must be met within the same timeframe in order for your relationship to be considered a common-law marriage. In other words, having lived together years ago but only recently considering yourselves a married couple doesn’t reach the threshold for a common-law marriage.
The Agreement between Yourselves to Be Married
To demonstrate to the court that a common-law marriage exists between you and your partner, you’ll need evidence that you both intended to form an immediate, present, and permanent marital relationship – in the same vein as any other marriage. Having one or more heart-to-heart conversations about being married at some future date doesn’t cut it.
While having a written agreement between you is the gold standard, it’s not necessary to establish your common-law marriage. Absent a written document, the court will consider your and your partner’s actions and statements to determine whether or not you had an agreement between you to be married.
None of the following actions – alone – suffices when it comes to this element of a common-law marriage:
Simply being affectionate with one another
Being engaged to marry
Engaging in a marriage “trial run” or “trying out” a marriage-like relationship
A promise between you to stick by one another through sickness and in health
Nothing short of considering yourselves married will do. A Killeen family law attorney can help you determine if this bar for common-law marriage has been reached.s
Living Together as a Married Couple
Additionally, you and your partner must live together as a married couple. This requirement goes beyond simply having a sexual relationship and living under the same roof.
This element of common-law marriage requires you and your partner to maintain a household – the same way that married couples do – and to engage in the activities that married couples tend to engage in – which is referred to as cohabitation. This part of the equation requires a more significant blending of your lives than living together as roommates might.
While the length of time you live together has no bearing on whether or not you’ve established a common-law marriage, you must do so concurrently with – or at the same time as – the other necessary elements.
Any of the following factors can undermine your claim of living together in a common-law marriage:
Any evidence that one of you didn’t keep personal possessions in the residence you claim to have shared
Any evidence that you and your partner never spent the night together
Any evidence that you lived in the same residence but kept separate rooms and beds
Representing Yourselves as a Married Couple
Keeping your agreed-upon marriage between yourselves doesn’t make it a common-law marriage. You must represent yourselves as a married couple to others, which the law refers to as holding yourselves out as a married couple.
This effort can’t be one-sided. If one of you is out there busily telling others that you’re a married couple while the other isn’t so sure and doesn’t do the same, this element isn’t met. The bottom line is that the state doesn’t recognize secret common-law marriages. To meet the requirements, you need to both share the fact that you’re married.
Holding yourselves out as married needn’t be spoken. Instead, your conduct and actions can fulfill this requirement. Such conduct and actions can take any of the following forms:
Introducing each other as spouses to friends, colleagues, and neighbors
Obtaining a life, health, home, or car insurance policy together as a married couple and naming the other as the beneficiary
Filing federal income tax returns jointly as a married couple
Attending a party or hosting a party at which you introduce one another as spouses
Purchasing a home or real estate together and signing the deed as a married couple
Signing cards to one another that include statements such as “Love, your faithful husband” or “To my loving wife”
Signing a guestbook at a wedding or event as “Mr. and Mrs.”
Registering at a hotel as a married couple
Encouraging family members to refer to a partner as an in-law, such as a son-in-law, daughter-in-law, sister-in-law, or brother-in-law
Elements that can undermine this necessary component of a common-law marriage include things like the following:
Indicating on a lease agreement for an apartment or house that you are not married
Stating upon admission into the hospital that you’re single
Declaring yourself as single in this capacity erodes your claim that you’re in a common-law marriage.
A Note about Capacity
In order for common-law marriage to apply in your situation, each of you must have had the capacity to enter a marriage in the first place. To do so, you both must meet all of the following requirements:
Each of you must have been at least 18 years old.
Neither of you were currently married to anyone else.
You and your partner aren’t related.
You and your partner each possess the mental capacity to consent to marriage.
When the elements above are met and you each have the necessary capacity, you can consider yourselves in a common-law marriage.
Common-Law Marriages and Common Myths
As mentioned, there is no magic amount of time spent living together that translates to a common-law marriage, but that is far from the only myth out there. Consider the following common misconceptions surrounding common-law marriage:
Becoming engaged, which is an agreement to marry at a later date, does not meet the requirement of agreeing between yourselves that you’re married, which is necessary for a common-law marriage.
One of you telling other people that you are married – when the other isn’t in agreement – doesn’t meet the requirement of holding yourselves out as a married couple.
One of you using the other’s last name without express permission will not bolster a claim of being in a common-law marriage.
Agreeing to be married but never living together doesn’t meet the requirements of common-law marriage.
If you talked about or agreed to being married between yourselves but failed to hold yourselves out to others as a married couple, you’re unlikely to be in a common-law marriage.
Living together, having kids together, and assigning one parent’s last name to the children does not make a common-law marriage.
Finally, the biggest myth of all is that even though agreeing to being in a common-law marriage is a primary component of making it official, you can’t simply agree to a common-law divorce. For that, you’ll need to finalize the matter through the court.
Why It Matters
If you and your common-law spouse remain married, it’s important to know that your common-law union affords you the same rights and responsibilities that any other married couple has.
Further, if your relationship ends, the fact that you are in a common-law marriage means that you’ll need to obtain a divorce, which is of serious legal consequence. Each term that applies must either be resolved between you or require the court’s intervention. Consult with a Killeen family law attorney for help identifying and resolving your divorce terms.
Child Custody Arrangements
Child custody arrangements in Texas address both legal custody and physical custody, and the fact of your common-law marriage will have no bearing on how this term is resolved. Legal custody determines how you and your ex will address the following primary parenting decisions:
Your children’s education and daycare
Your children’s healthcare
Your children’s religious upbringing
Your children’s participation in extracurriculars
Joint and sole legal custody are both options.
Physical custody determines the parenting time schedule by which you and your children’s other parent will divide your time with them. Texas courts base every child custody determination on the best interests of the children. As such, each parent can generally expect to receive a generous allotment of parenting time – even if one of you is identified as the primary custodial parent.
Child Support
Parents who aren’t together – whether they were married in a ceremony, were in a common-law marriage, or were never married – are each responsible for continuing to support their children financially. Child support is the legal mechanism for this responsibility. Several variables factor into this calculation, but the parent who earns more generally has the child support obligation.
Property Division
The fact that you and your partner were married under common law rather than marrying on a specific date can seriously complicate property division in your divorce.
Those assets that you and your partner each owned separately prior to your common-law marriage – and kept separate throughout – will remain that spouse’s separate property, but anything that was acquired during your common-law marriage is marital property that must be divided between you fairly under the given circumstances.
The division of marital property always has the potential to be complicated. Having to pinpoint the date that your common-law marriage went into effect can make it more so.
Alimony
Alimony is reserved for those specific occasions when divorce leaves one spouse unable to cover his or her own reasonable needs. The fact that your marriage was common law won’t affect whether or not alimony applies in your divorce.
Reach Out to an Experienced Killeen Family Law Attorney Today
Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a formidable family law lawyer with wide-ranging experience helping clients in common-law marriages protect their parental and financial rights throughout the divorce process, and he’s here for you, too.
To learn more about what we can do to help, please don’t put off contacting us online or calling us at (254) 781-4222 to schedule your FREE consultation today.