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Divorce Lawyers in Houston– In Texas, many people are aware that Texas recognizes common-law marriage. However, not everyone that I meet with is aware of what it takes to meet the Texas statutory requirements of being common law married or why it is important.
Recently I was meeting with a man who was bewildered that he had been sued for divorce. When I asked him about his case he plopped down an original petition for divorce and said, “I want to know how I am married?”
“Am I married?” Seems like a simple question, right? Sometimes however it is not. I asked him “You, never had a ceremonial marriage?” He said “No.” I then started asking him the following questions:
Q: “Have, you ever lived together?”
Answer: “Yes.”
Q: “Have, you ever introduced each other as being husband and wife?”
Answer: “yes, out of convenience.”
Q: “Have, you ever filed taxes together?”
Answer: “Well we have kids together so I filed as head of household and claimed her and the kids on my tax return.”
I let him know that he and his ex may be common-law married. “Common Law marriage is something that exists in Texas, although it is called Informal Marriage under the Family Code.”
In this article, we will discuss some of the common questions people have regarding common law marriage in Texas.
IS COMMON-LAW MARRIAGE A TEXAS THING?
In the above consult the man was extremely frustrated that Texas had laws that recognizes the Common-Law Marriage. However, Texas is not the only state the following states have laws regarding common law marriage:
Alabama …………….
THE TEXAS STATUTORY REQUIREMENTS FOR A COMMON-LAW MARRIAGE
Family Lawyer Houston– An informal or common-law marriage is a marriage between two people who have not obtained a marriage license and participated in a marriage ceremony and under Texas Family Code Section 2.401:
1. Agree to be married
2. Live together in Texas as husband and wife
3. Hold themselves out to others in Texas as husband and wife and
Agreement to be Married
One of the elements to establish a common-law marriage the parties must agree to be married.
This means that in an evidentiary hearing the spouse alleging a common-law marriage will need to put on evidence that the parties intended to have a present, immediate, and permanent marital relationship wherein they both agreed to be husband and wife.
An agreement to get married at some later time in the future is not sufficient to establish an agreement to be married. If there is no written agreement to be married, your actions and the actions of the other party can be used to prove that there was an agreement to be married.
Living Together
The next element need to establish a common-law marriage, is that the parties must have lived together in Texas as husband and wife.
Texas case law states that to meet the element of living together as husband and wife, you must demonstrate that you maintained a household and did things that are commonly done by a husband and a wife.
There is no minimal number of days you must have resided together in Texas to meet this requirement.
Holding Out
The final element needed to establish a common-law marriage is that parties must have told other people in Texas that they were married.
This can be accomplished either by:
1. Spoken words or
2. Actions and conduct by each person may be enough to fulfill the requirement of holding out.
In other words there can be no secret common-law marriage.
IS THERE A STATUTE OF LIMITATIONS ON ESTABLISHING A COMMON-LAW MARRIAGE?
Divorce Lawyers Houston– No. Contrary to what some people believe, there is not statute of limitations for establishing a common-law marriage. Provided that the elements are met that :
1. There’s an agreement to be married
2. That the couple tells other people about it and
3. The couple could live together for even one day
This could be enough to establish a common-law marriage.
LEGAL EFFECT OF A COMMON-LAW MARRIAGE
If a common-law marriage exists it has the same legal significance as a ceremonial marriage. This means:
1. You would have to file for divorce when the relationship ends just as you would if you had a ceremonial marriage.
2. Once a common-law marriage the only way to end it is by death, divorce, or annulment.
3. There is no such thing as a common-law divorce.
4. If a common-law marriage exists, then all property and debts accumulated during the duration of the common-law marriage that are community property are subject to division by the Court at the time of the divorce.
Alternatively, a couple can file a “declaration of informal marriage” under Texas Family Code Section 2.401(a)(1) with the county clerk as prima facia evidence that the parties have entered an informal marriage.
Practically speaking, if there are children resulting from a common-law marriage or property acquired during the term of the marriage, as a divorce is sometimes the best and easiest way to dissolve the relationship.
One example of this is from a case where I represented a mother who in addition to having a child with the father purchased a home with him. Unfortunately, when I looked at the elements to see if we could establish a common-law marriage there was no evidence in support.
It was easy enough to establish Orders regarding the child. Unfortunately, disentangling her from the house could not be accomplished at the same time and must be pursued in a different lawsuit. This was frustrating for her because the father was living in the house rent free and was not paying any of the bills.
WHY YOU MAY WANT TO DENY THE EXISTENCE OF A COMMON-LAW MARRIAGE
Family Attorney Houston– The main reason people want to prove that a common-law marriage is stuff. They want to divide up property that may have been acquired during the marriage.
That happens to also be the most common reason why someone wants to deny the existence of a common-law marriage. They want to avoid allowing their alleged spouse from getting community property rights over any of the property.
If the party with most of the property can prevent the existence of a common-law marriage being proven, then the alleged spouse has no rights to their property… Continue Reading
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