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 hard, expensive work.
What Makes a Common Law Marriage?
Three elements must exist at the same point in time in order to have a common law marriage. The marriage exists at the instant the three elements are met. First is cohabitation in Texas. Next is “holding out” as a married couple. Finally, there is the present intent to be married.
Cohabitation in Texas
This is the easiest element to prove in court. No time limit or minimum time requirement exists. If the parties cohabit in Texas, this element is met. Sleep overs and long weekends don’t count. However, if the parties share an apartment or house this element is met. An example of cohabitation includes when the parties have their furniture in the same dwelling. Likewise, receiving mail at the same address or appearing on lease or purchase documents likely equals cohabitation. Certainly, if neither party has any other place to live, cohabitation exists. Remember, the 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 the wife using the husband’s last name. Clearly, 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 HUGE factor. If people in the community would believe the couple is married, this element is met. Conversely, no common law marriage can exist if it’s a secret; the community needs to know.
Present Intent to be Married
The hardest element to prove is the present intent to be married. Many of the facts that prove that the couple were 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 proved for both parties.
Many courts in Texas look to see if the couple filed taxes as a married couple. If the couple failed to file Married Filing Jointly on their federal taxes, then many courts will hold that one of the parties did not have the present intent to be in a marriage relationship. The common law marriage is busted, regardless of the other factors. Apparently, 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.
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. Ergo, the Texas community property presumption arises, and a legal divorce is required to undo the common law marriage. There is no such thing as a common law divorce! The only way out of a common law marriage is a formal legal divorce.
Divorce risks for Common Law Marriage
Usually, when the couple breaks up, one party would benefit from a marriage. Meanwhile, the other party would benefit if there never was a marriage. For example, if no marriage existed, the spouse with the biggest retirement would get to keep it all. 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 fall on the person claiming a marriage existed. If one party denies a marriage, then the judge will have to 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.
Many common law marriage divorces get severed into two parts. The first is a trial to determine if there even was a common law marriage; were the three elements met. If the court finds a marriage, then the spouses must go through all the steps any other divorcing couple must do. The net effect is that a common law marriage 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 there is a document that 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, we recommend filing the registration document asap. The document can be backdated to the date the spouses agree was the beginning of the marriage. The registration document provides the spouses with the protections that Texas gives to married persons. Don’t wait until you want a divorce. File 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 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 a marriage is or isn’t. Get the facts.
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 essay 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, find us on the web at youngblood-law.com.