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Common Law Marriage in Texas 

Common law marriage in Texas comes up more than you might think. Many people know someone who is common law married. Or, at least, that person thinks he or she is common law married. Unfortunately, many people who think they are common law married are not. Worse, proving a common law marriage in a divorce is complex, expensive work. If you think you may be in a common-law marriage, consult a trusted Fort Worth family lawyer to navigate the complexities and ensure your rights are protected.

Ask a Family Law Attorney Fort Worth Couples Trust: What Makes a Common Law Marriage?

Three elements must exist at the same point in time to have a common-law marriage. First is cohabitation in Texas. Next is “holding out” as a married couple. Finally, there is the present intent to be married. The marriage exists at the instant the three elements are met. 

Cohabitation in Texas

Cohabitation in Texas is the most straightforward element to prove in Court. No time limit or minimum time requirement exists. Contrary to popular belief, there is no six-month or one-year timeframe requirement. If the parties cohabit in Texas, this element is met. This is a simple “yes or no” analysis. Sleepovers and long weekends don’t count. However, this element is met if the parties share an apartment or house. An example of cohabitation includes when the parties have their furniture in the same dwelling. Receiving mail at the same address or appearing on lease or purchase documents likely equals cohabitation. Indeed, cohabitation exists if neither party has any other place to live. Remember, cohabitation must occur in Texas to have a common-law marriage.  

Holding Out as a Married Couple

Holding out as a married couple is harder to prove. Evidence of holding out includes factors such as joint checking accounts. Another good clue is a wife using her spouse’s last name. Referring to each other in public as husband or wife is a sure sign, as is wearing wedding rings. Filing taxes as a couple is a HUGE factor. If people in the community believe the couple is married, this element is likely met. No common law marriage can exist if it’s a secret; the community needs to know.

Present Intent to be Married

The most challenging element to prove is the present intent to be married. Many facts that prove that the couple was holding out as a married couple also prove a present intent to be married. What makes proving this element so hard is it must be established for both parties.

Many courts in Texas, including those in Fort Worth, look to see if the couple filed taxes as a married couple. Suppose the couple failed to file Married Filing Jointly on their federal taxes. In that case, many courts will hold that one of the parties did not have the present intent to be in a marriage relationship. If that happens, the common law marriage is busted, regardless of the other factors. The courts assume that any married couple would choose to benefit from the tax breaks available to married couples. Thus, if the parties file separately, they must not be a married couple in the eyes of many Courts. If you’re unsure if your relationship is considered a common law marriage, consult a knowledgeable family law attorney in Fort Worth for guidance.

Common Law Divorce

When all three elements of a common law marriage are met, the marriage exists—at that very instant. The marriage is just as valid as if the parties had done a big ceremonial wedding. That means that Texas community property presumption arises from the instant the marriage came into existence. It also means a legal divorce is required to undo the common-law marriage. There is no such thing as a common-law divorce! A formal legal divorce, handled by an experienced divorce attorney is the only way out of a common-law marriage. Seek professional assistance from a Fort Worth divorce attorney to navigate the process and protect your interests effectively.

Divorce Risks for Common Law Marriage  

Usually, when the couple breaks up, one party benefits from the marriage. Meanwhile, the other party would benefit from no marriage. For example, if no marriage existed, the spouse with the biggest retirement would get to keep it all. Without the marriage, the other party would be left with nothing because Texas’s community property laws wouldn’t apply. The burden of proving all the elements of the marriage falls on the person claiming a marriage existed. If one party denies a marriage, the judge must be convinced by the other that the marriage existed.  

Extra Expense of a Common Law Marriage

Divorces can be expensive. But common law marriage divorces cost more. Proving the factors is very fact specific. Gathering the documents, witnesses, and other evidence of a marriage consumes time and money. All this work isn’t required when there’s a formal marriage. In a formal marriage, the couple knows they are married, and so does everyone else. But in a common-law marriage, one party may make a convincing case that no marriage ever existed.  

Many common law marriage divorces get severed into two parts. The first is a trial to determine if a common-law marriage even existed; where the three elements met? If the Court finds a marriage exists, then the spouses must go through all the steps any other divorcing couple must do. If the Court determines that no marriage existed, the parties were never married, so a divorce is unnecessary. The net effect is that a common-law marriage often has two final trials with all the bells and whistles. The first trial determines if there is a marriage. The second trial is the divorce like any other married couple requires. 

Registration of Common Law Marriage

In Texas, a document can be filed to settle the common law marriage question. The spouses file a Registration of Informal Marriage with the county or district clerk. The registration document can be filed at any time during a common-law marriage. This document formally acknowledges a marriage between the spouses. It acts in the place of having to prove the three elements of a common law marriage. If the parties sign and file this document saying they are in a marriage, the Court will take their word for it.


If you are in a common law marriage, consider filing the registration document ASAP. The registration document provides the spouses with the protections Texas gives married persons. The document can be backdated to the date the spouses agree was the beginning of the marriage. Don’t wait until you want a divorce. Consider filing the registration while the spouses are happily married to avoid a costly trial to prove a marriage existed.  

If you are in a common law marriage that’s on the rocks, you need a competent Fort Worth family lawyer ASAP. If you are a same-sex couple, recent supreme court decisions could be a real benefit, or they could be devastating. Get a family lawyer who knows what questions to ask. Don’t assume marriage is or isn’t. Get the facts.  

Contact a Skilled Fort Worth Family Law Attorney About Your Common Law Marriage!

Youngblood Law, PLLC is a Fort Worth, Texas, law firm dedicated to family law. We help good people who are trapped in bad relationships find the freedom to pursue their new happily ever after. We also proudly offer the collaborative divorce process for our clients. This article is intended for educational use only and is not a replacement for competent legal counsel. If you are facing a family law matter, we recommend obtaining competent legal counsel like Youngblood Law, PLLC. For more information, contact us at 817-601-5345 or find us on the web at www.youngblood-law.com.


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