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Common law marriage in Texas is something that comes up more often than many people would suspect.  It seems like a lot of 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 might be common law married are not, and even those who are, will have a hard time proving the marriage when it’s time for a divorce.

What Makes a Common Law Marriage?

There are three elements that have to exist at the same point in time in order to have a common law marriage.  At the instant these three elements are met the marriage exists.  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.  There is no time limit or minimum time requirement.  If the parties cohabit in Texas, this element is met.  This has to be more than sleep overs, or long weekend, but if the parties share an apartment or house this element is met.  When the parties have moved their furniture into the same dwelling, get mail sent to the same address, or appear on lease or purchase documents, we know they are cohabiting.

Holding Out as a Married Couple

Holding out as a married couple is harder to prove, but evidence of holding out includes factors such as joint checking accounts, the wife using the husband’s last name, referring to each other in public as husband or wife, and wearing wedding rings.  If people in the community would believe the couple is married, this element is met.

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.  The courts in Texas often look to see if the couple filed taxes as a married couple.  If the couple did not 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, and the common law marriage is busted.

Is There A Common Law Divorce?

The instant all three elements of a common law marriage are met at the same time, the marriage exists just as if the parties had done a big ceremonial wedding.  That means that 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

When a divorce is imminent, it is often beneficial for one of the parties to claim there never was a marriage because that party may have more property in his or her name, and he or she doesn’t want to have to split the property with the other party.  Relying on the present intent to be married element, the party will say he or she thought the parties were just in a long term dating relationship.  If the parties were just dating, then community property, including retirement accounts, did not accrue during the relationship. The burden of proving all of 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.

Registration of Informal Marriage

In Texas there is a document that can be filed with the county or district clerk called a Registration of Informal Marriage at any time during a common law marriage.  This document allows the parties to formally acknowledge that they are in a common law marriage, and 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.

Youngblood Law, PLLC is a Fort Worth, Texas family law firm that uses a holistic approach to help people define their new normal through the divorce process and beyond. 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, or on your mobile device, open your browser and type in and press Go.

Paul Youngblood #beforeyournext #lawfw #youngbloodlaw #somedayistoday #collaborativedivorce #beingdivorceddoesntsuck