What is common law marriage in Texas?
Common law marriage is a marriage that has occurred without a ceremony, but that meets certain requirements. If all three of the following are true, you might be married under the laws of the state of Texas:
- You and your significant other have lived together in Texas in a conjugal relationship;
- You and your significant other have “held out” that you are married; and
- You and your significant other have intended to be married.
Conjugal Living – This means you have lived together and had a sexual relationship with one another, like that of a husband and wife. You have to have lived together this way in Texas.
Holding Out – This means that the two of you have identified yourselves as spouses. You have introduced your significant other as your husband or your wife. Perhaps you have signed a lease or credit application as a married couple. Perhaps you have filed a joint tax return. Perhaps everyone you know thinks you are married.. Sometimes there is a lot of evidence of holding out as married, sometimes it is just a few tidbits of facts.
Intent to be Married – This goes behind the holding out and looks at your intentions. Intent can actually be inferred from acts that constitute holding out as married.
You have to prove all three of the above elements for a court to find that you have a common law marriage.
If you and your significant other break up, you must file a suit to declare your relationship a marriage within two years of separating. Call us at (281) 503-7373 for an appointment to discuss the facts of your situation.
If you are common law married, you may go to your county clerk and file a “Declaration of Informal Marriage.” This is an instrument that formalizes your relationship as a married couple.
To be common law married, you must be eligible to marry each other. For example, neither of you can be married to someone else, you must each be at least 18 years old, and you can’t be closely related in a way that prevents you from marrying (e.g., kissing cousins).
Why Recognize Your Common Law Marriage?
Why is it important to recognize your common law marriage? One reason is community property. In the state of Texas, any property acquired during the marriage is community property, belonging equally to both spouses. If the two of you have accrued retirement or investments or have acquired real property during the time of your informal marriage, it would belong equally to both you if the informal marriage is recognized.
Another reason is benefits. A spouse might be eligible for health insurance, whereas a boyfriend or girlfriend isn’t. If you have been married for ten years, you might choose to get social security based on spouse’s earnings, rather than your earnings (even if you get divorced, provided you have not remarried).
Yet another reason is so that you can make medical decisions for your spouse if he or she is incapacitated – the spouse is nearly always the closest relative and given deference in those decisions.
If you have been together for a long time and you meet the requirements of common law marriage, you might want to file a Declaration of Informal Marriage. You should at least discuss the option before you finally cement the relationship with a marriage ceremony. If you get married formally, your date of marriage will likely be the date of your formal ceremony and not the date you became eligible for common law marriage.
Contact Us for Help in Recognizing Your Common Law Marriage
Call us at (281) 503-7373 if you have questions about common law marriage and if you need help or advice about recognizing a common law marriage. You can also send us an email using our contact form.