How Same-Sex Marriage, a Supreme Court Ruling, and Common-Law Marriage Intersect

a gavel and books describing common-law marriage in Texas

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Brett Pritchard Law

Updated on June 14, 2023

Heterosexual couples have always been able to marry and divorce as they pleased, facing very few legal obstacles. In fact, the biggest challenges heterosexual couples faced when considering marriage were generally wedding budgets and wedding planning.

In the not-too-distant past, the matter was very different for same-sex couples and others in the L.G.T.B.Q. Community. Prior to June 26, 2015, same-sex couples had to maneuver legal marriages – rather than entering into them as a matter of course.

As a result, some same-sex couples never entered into official marriages, even after same-sex marriage was legalized. Those who never proceeded with legal marriages once the law allowed it can face more considerable challenges in terms of divorce and legal inheritances to this day.

If you are facing a divorce of any kind, working closely with an experienced Killeen divorce attorney is always in your best interest.

Obergefell v. Hodges

On June 26, 2015, the Supreme Court’s decision in Obergefell v. Hodges gave those in the L.G.B.T.Q. Community the same right to marry that heterosexual couples have always been afforded.

While same-sex couples had the right to marry in scattered states across the country prior to this date, many more states, including Texas, not only made same-sex marriages illegal but refused to recognize same-sex marriages that were granted in other states. Obergefell v. Hodges, however, changed all that.

Before this Supreme Court ruling, many couples – in Texas and other states throughout the nation – came up with whatever means they could to formally affect legal rights that allowed them to commit to one another. Consider the following efforts that were often employed by same-sex couples:

  • Traveling to marry in states in which same-sex marriage was legal

  • Entering into partnership agreements

  • Entering civil unions

However, none of these attempts qualified as marriage in the State of Texas before the 2015 ruling.

Post Obergefell v. Hodges

Prior to the Obergefell ruling, same-sex couples who married in states in which it was legal to do so were not considered married in the State of Texas. After the ruling, those who did officially marry elsewhere were recognized as legally married in every state in the union, including Texas.

However, those same-sex couples who entered into civil unions or partnership agreements and never officially married in the State of Texas may not be. Additionally, some of these couples may or may not have formed common-law marriages over the years. In other words, it is complicated.

The Respect for Marriage Act

The Respect for Marriage Act passed by Congress at the end of 2022 replaces verbiage that defines marriage as being between a man and a woman or between a spouse and a person of the opposite sex with more inclusive language. Any marriage between two people that is valid under state law is recognized as a marriage.

This federal law builds statutory protections that further support same-sex marriages, including same-sex common-law marriages in the State of Texas.

Common-Law Marriage in Texas

Prior to the Obergefell ruling, a common-law marriage in the State of Texas was between a man and a woman who agreed between themselves that they were married as husband and wife and who acted as a married couple to the public at large. Other requirements included being at least 18 years old and otherwise unmarried.

This arrangement is called a common-law marriage because, although the couple never married or obtained a marriage license, they are recognized as married by the state. When all of these elements are present in tandem, the couple is in a common-law marriage.

Since Obergefell, this also applies to same-sex couples.

A Same-Sex Common-Law Marriage Can Predate Legalization of Same-Sex Marriages in Texas

In the years since Obergefell, Texas has taken a rather unique take on same-sex common-law marriages. While same-sex common-law marriages were illegal in the state prior to the Supreme Court ruling, Texas employs a Relation Back Doctrine.

The Relation Back Doctrine affords same-sex couples who married legally in another state – whether in a traditional marriage or a common-law marriage – the opportunity to “prove up” their marriage back to that retroactive date, which can significantly affect the division of marital property and alimony in the event of a divorce.

All couples can also apply for an informal marriage license that includes whatever date applies to their common-law marriage. Without this documentation, same-sex couples will not be able to establish a start date for their common-law marriage that is prior to the date same-sex marriages were legalized in Texas.

What a Common-Law Marriage Is Not

One of the most common misconceptions about common-law marriages is that living with one another for a specific number of years translates to being in a common-law marriage. However, there is no magic number of years that will do the trick.

The required elements of common-law marriages are required, and they can be achieved in a very short amount of time, a very long stretch of time, or any amount of time in the middle.

Proving that Your Marriage Is a Common-Law Marriage in Texas

The most straightforward way to prove that your relationship (whether same-sex or heterosexual) is a common-law marriage is by filing a form known as a Declaration of Informal Marriage at your local County Clerk’s office. This form by itself is enough to prove that a valid common-law marriage (or informal marriage) exists between the two of you.

Often, however, couples who do not officially marry do not go through the process of declaring their informal marriage, which can complicate the matter of divorce or legal inheritance considerably.

Establishing Your Common-Law Marriage by Another Means

Barring the filing of a Declaration of Informal Marriage, you will need to establish that a common-law marriage exists between you and your partner for the legal rights and responsibilities of marriage to apply. Generally, this is done by providing evidence of your mutual intentions. Consider these most common examples of such evidence:

  • You behaved like a married couple, and people in the community witnessed this behavior.

  • You referred to yourselves as a married couple, and community members heard you do so.

  • You wore rings – similar to wedding rings – that symbolized your marriage.

  • You filed joint tax returns together.

  • You shared joint bank accounts.

  • You applied for credit jointly.

  • You purchased a joint life insurance policy, made each other beneficiaries on your separate life insurance policies, or both.

  • One of you covered the other as a spouse on your employment-based health insurance policy.

  • You purchased property together.

The more of these situations that apply to your relationship, the clearer your claim of a common-law marriage is likely to be. Consult with a skilled family lawyer for help establishing your common-law marriage.

An Important Note

One of the most common reasons common-law marriages are determined to be invalid is that one of the partners is already married. If a previous marriage is not dissolved by either death or divorce, it is legally viable, and no further marriage is considered valid.

This situation can prove exceptionally difficult for those who commit to common-law marriages that last many years – only to discover that a common-law marriage wasn’t possible to begin with.

Your Common-Law Marriage: Is It Valid in Other States?

Common-law marriages are not recognized in all states, which means that your marital status could change if you move out of Texas. In addition to Texas, all of the following states currently allow common-law marriages:

  • 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

There Is No Common-Law Divorce

If you are in a common-law marriage, there is no way – other than death or divorce – for it to be dissolved. As it is often put, there is no common-law divorce. The divorce process for those in common-law marriages is the same as for those who are married in a legal ceremony.

Marriage affords you specific rights and obligations; common-law marriage is no different.

The Terms of Your Divorce after a Common-Law Marriage

The terms of your divorce after a common-law marriage are exactly the same terms that every divorcing couple must resolve (as applicable), and they include the following decisions:

Your Child Custody Arrangements

If your common-law marriage involves children, your child custody arrangements directly affect your parental rights, which makes them a primary concern. In Texas, child custody is addressed in terms of both legal custody and physical custody.

Legal Custody

Legal custody determines how you and your children’s other parent will address the matter of primary parenting decisions moving forward. This includes all of the following kinds of decisions:

When it comes to how you will address this important divorce term, there are a variety of options:

  • You and your ex can make each of these decisions together. (One of you might have the ability to break a tie if you are unable to resolve the issue together.)

  • One of you can take on sole legal custody and make each of these decisions on your own.

  • You can divide this decision-making responsibility between you according to the kind of decision that needs to be made.

Physical Custody

Physical custody sets the schedule by which you and your ex will divide your time with your shared children. While your scheduling options are vast, they all break down into one of the following two basic approaches:

  • You and your ex divide your parenting time somewhat evenly.

  • One of you is the primary custodial parent (with whom the children share the majority of their overnights), while the other has a visitation schedule.

Best Interest Factors

It is important to note that if you need the court’s intervention on this matter, its focus is always on the best interests of the children involved. To this end, the court will consider these factors and any others it deems relevant:

  • Each parent’s overall ability to provide the children with the care, attention, and stability they need

  • Each child’s unique physical and emotional needs, including any special needs

  • Each parent’s commitment to fostering an ongoing, strong relationship between the children and the other parent

  • Each parent’s level of involvement in raising the children to date

  • The level of closeness each parent enjoys with the children.

  • Each parent’s preference in the matter

  • Each child’s preference in the matter (if he or she is determined to be mature enough to voice a reasonable preference)

  • How well-adjusted the children are to their current living situation (in relation to home, school, and the community at large)

  • Any history of domestic violence, child abuse, or child neglect

  • Any other factor that the court considers relevant to the case at hand

Contact a Killeen divorce lawyer to see what factors may affect child custody arrangements in your case.

The Division of Your Marital Assets

Those properties and assets that you and your spouse collect over the course of your common-law marriage – or formal marriage – are viewed by the law as marital assets. In Texas, these must be divided between the two of you in a manner that is viewed as fair or equitable (in relation to the unique circumstances involved).

When it comes to identifying assets as marital, it does not matter which of you made the purchase or whose name is on the purchase agreement. If it came to you while you were living together in a common-law marriage, it is almost certainly marital property. There are very few exceptions, but the following properties may be considered separate:

  • Any gifts that you or your spouse received in your name alone.

  • Any inheritances that you or your spouse received in your name alone.

Separate property refers to those assets that either of you brings into the marriage with you and that you keep separate over the years. Your separate property will remain your own upon divorce, but an intermingling of marital and separate property over the course of a marriage is very common.

It’s also important to keep in mind that, even if you keep an asset strictly separate, any increase in its value will be considered marital. If, for example, you bring a 401k into your marriage with you, its original value is likely to be deemed separate, but the amount that it increases over the years will need to be divided between you and your divorcing spouse.

Child Support

State calculation guidelines determine child support in Texas. While a variety of factors go into the calculation process, the primary considerations include each parent’s income and the amount of time each parent is responsible for the children.

However, even if you divide your parenting time directly down the middle, the parent with the higher income is likely to have the child support obligation. There are also certain instances when the court will deviate from the standard guidelines. Examples include the following circumstances:

  • If one parent is unable to work as a result of caring for a child with considerable physical, mental, or emotional special needs

  • If one parent’s own physical, mental, or emotional health concerns preclude him or her from working

  • If a child requires extraordinary expenses that go beyond the normal parameters of child support

Consult with a skilled Killeen divorce lawyer to see how child support will most likely play out in your case.


Alimony will only play a role in your divorce if it leaves either you or your soon-to-be-ex with a financial disadvantage and the other has the means to offset this financial setback. Alimony is typically set at an amount and for a duration that allows the recipient to become more financially independent.

Common-Law Marriages Do Have an Expiration Date

If you and your common-law partner split and go your separate ways, it does not dissolve the fact of your common-law marriage. However, if you separate and two years pass, the State of Texas generally considers the common-law marriage claim void. In other words, you will have no recourse for the division of marital property or alimony at this point.

The same is not true of marriages – in Texas, you are legally married until you are officially divorced.

Reach out to an Experienced Killeen Divorce Attorney Today

While each divorce is unique, they are almost universally difficult ordeals to overcome. While you can represent yourself in a divorce, it is almost always a bad idea to do so.

Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a distinguished divorce attorney who takes great pride in helping clients like you resolve their challenging divorce concerns – whether your marriage is formal or common-law.

To learn more about how we can help, please do not hesitate to contact us online or call us at (254) 781-4222 today.

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