When it comes to common law marriage in the State of Texas, people have a lot of questions. And if you’re facing a breakup and aren’t sure if you are in a common law marriage or not, you likely have even more.
Because protecting your financial rights is key, working closely with a dedicated Round Rock divorce attorney who has a wealth of experience successfully guiding clients through common law marriages with their rights intact is key.
What is the difference between a common law marriage and any other marriage?
When a couple marries, they take specific steps, which create a legal contract that binds them together in the eyes of the law – and in the eyes of the community at large. When a couple is in a common law marriage, they are just as married, but they arrive there via a different route.
Instead of going through the marriage process, couples in common law marriages live together as a married couple, and all of the following apply:
Both parties are at least 18 years old.
Neither party is legally married to anyone else.
The couple lives together like a married couple – rather than in a roommate situation.
The couple agrees between themselves that they are married.
The couple holds themselves out to others as a married couple – telling people they are married or introducing one another as my husband or my wife, for example.
The parties are not blood relatives.
Often couples in common law marriage take actions that further link them in the ways that married couples are, such as by filing their taxes as a married couple or by taking out a home loan together as a married couple. Applying for state services together and sharing joint accounts also fit the bill.
How long do we have to live together to be in a common law marriage?
Many people believe that living together for a magic number of years turns an ordinary couple into a couple who is in a common law marriage, but that isn’t how it works in Texas. If you fulfill the requirements listed for a common law marriage to apply, you’re in a common law marriage, and if you don’t, you’re not.
This can potentially happen in the first few days you live together, such as if you have an open house and introduce yourselves as a married couple, but you could also live together as a couple for decades without ever entering a common law marriage.
The dividing line tends to be that both of you intend to be in a common law marriage and that you share this intent with others.
We’re engaged. Does living together make our relationship a common law marriage?
No, being engaged establishes that you intend to marry but that you haven’t yet, which means that you don’t fulfill the requirements for a common law marriage.
To be in a common law marriage, you and your partner must agree that you’re a married couple and must confirm this by holding yourselves out as married to others in the community. If you call yourselves an engaged couple, it negates any chance that you’re in a common law marriage.
What if we’re a same-sex couple?
Texas – like every other state in the nation – recognizes marriage equality. This allows everyone who meets the basic requirements to marry – whether the couple is heterosexual or same-sex – the right to marry and to experience the same financial protections that marriage affords.
This also applies to same-sex couples in common law marriages, which – ultimately – mirror other marriages.
If you and your partner qualify under the common law marriage requirements, you’re in a common law marriage – regardless of what sex either of you is. It is, however, necessary to live together as a married couple instead of simply living together as roommates in order to be classified as a couple who is in a common law marriage.
Does taking on my partner’s last name mean we’re common law married?
No, adopting your partner’s last name doesn’t mean that you’re in a common law marriage. Even if you have a child together, and you all share the same last name, it has no bearing on whether or not common law marriage applies.
If, however, you meet all the requirements for a common law marriage and you share your partner’s last name, it can help build your case for identifying your relationship as a common law marriage.
How do I know if our relationship is a common law marriage?
Generally, the matter of whether or not your relationship qualifies as a common law marriage or not won’t specifically come up unless you’re breaking up or you’re facing concerns related to inheritance.
If, for example, you’re breaking up and aren’t in agreement about whether or not you’re married as a matter of common law, the court will make the determination by taking the unique circumstances of your case into careful consideration.
If you live together as a couple and tell people you’re married – such as if your family considers you a married couple – and do other things that married couples do, such as having joint accounts, the court is very likely to identify you as a couple in a common law marriage.
The problem arises when one partner denies having agreed to be married in the first place. Proving such an agreement can be exceptionally difficult unless you put it in writing or it is memorialized in some other way, such as on social media.
If you and your partner are not in agreement on the matter of common law marriage, the court will look for other clues that prove you both considered yourselves married. This is where doing things like filing your taxes together and having joint accounts can come into play.
If you and your partner do agree on the matter of common law marriage, whether this means that you are or are not in one, there won’t be an issue – as long as you meet the other requirements in the event that you both consider yourselves married.
Can a common law marriage be formalized?
Yes, if you and your common law spouse prefer to document your common law marriage, you can file a Declaration of Informal Marriage with the court. Once you make this filing, you can also obtain an official marriage license if you choose.
What if my partner tells everyone we’re married, but I’m not on board?
For common law marriage to apply, both parties must consider themselves married to one another, and if either of you doesn’t, you have not established a common law marriage.
If you don’t protest being called your partner’s spouse, however, you could give the larger community the idea that you do consent, which can strengthen your partner’s claim that you are in a common law marriage if it ever becomes a legal issue.
If you play along with their game by nodding your agreement or by referring to their family as your in-laws, you help make their case even stronger.
Ultimately, it’s important to get to the bottom of why your partner chooses to go rogue when it comes to your marital status. If you do break up, the fact that you went along with them – or didn’t set the matter straight – could seriously undermine your contention that you weren’t in a common law marriage.
Does it matter when our common law marriage began?
If your relationship ends and either of you can establish that you were in a common law marriage, it will afford you the specific financial protections that other married couples experience.
These rights don’t apply, however, until the date that you officially became married as a matter of common law, which makes the common law marriage date very important.
The day that all three of the following apply to your relationship establishes your common law marriage date:
You lived together as a married couple.
You declared yourselves married between yourselves.
You held yourself out to others as a married couple.
Does a common law divorce differ from any other divorce?
Texas recognizes common law marriages, and they have the same legal weight as any other marriage. There is no special divorce process that makes dissolving a common law marriage any easier than it is to dissolve any other marriage.
Put simply, if you are in a common law marriage and you break up, you need a divorce, and working with a seasoned divorce attorney from the start is in your best interest.
What financial rights are established by a common law marriage?
If you can prove that you are in a common law marriage, you will have the same financial rights that every divorcing couple has if you break up, which translates to a divorce for those in common law marriages.
Fair Division of Marital Property
You have the right to a just and right division of your marital property. This refers to everything that you and your common law spouse acquired from the date of your common law marriage.
It doesn’t matter whose name is attached or who made the purchase, if you were in a common law marriage at the time, it belongs to both of you and must be divided between you fairly – in accordance with the unique circumstances of your case. In other words, the date that your common law marriage was established can play a critical role in this division.
Spousal Maintenance
You may also – under specific circumstances – have the right to alimony, or spousal maintenance. If your divorce leaves you without the means to cover your own reasonable needs in relation to the standard of living you achieved during your marriage and your spouse has the ability to help, alimony may be ordered.
Alimony is generally reserved for marriages that last at least 10 years, and the longer your marriage, the longer your alimony’s duration is likely to be. Here too, the date that your relationship became a common law marriage plays a key role.
Social Security Benefits
If your spouse earned significantly more than you did over the course of your marriage – or if you didn’t work outside the home at all – their social security benefits will be far higher than yours. If you were married for at least 10 years before you divorce as a common law couple, you may be eligible to collect half of your ex’s social security benefits when the time comes.
There are other governmental benefits, including those related to military service, that also hinge on the length of the marriage, which reinforces exactly how important that common law marriage date is.
Can we get a legal separation as a common law couple?
Unlike most other states, Texas does not recognize legal separations, and as such, you’re in a common law marriage until you obtain a divorce.
This means that any assets or debts that either of you acquires while you are separated are marital property that must be divided fairly upon divorce. Further, any sexual relationship that either of you has during your separation is considered adultery, which can support a fault-based divorce.
If, however, you and your common-law spouse separate for a full two years, you may not be entitled to the legal protections of divorce. Consulting with a focused divorce attorney sooner rather than later is always advised.
Discuss Your Case with an Experienced Round Rock Divorce Attorney Today
Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Round Rock, Texas, for over 20 years – is a knowledgeable divorce attorney with an impressive track record of proving his clients’ common law status and fiercely protecting their financial rights throughout the divorce process.
Your case is important to your financial future, so please don’t put off contacting or calling us at 254-781-4222 to schedule a free consultation and learn more about what we can do to help you today.