Musemeche Law, P.C. Blog
Texas is unique in many ways, and our family code is certainly no exception. We are the only state in the country that allows people to be considered common-law married and while also assuming that all property acquired by the common law married couple is community property on the date of divorce. This means that a married couple who meet the conditions for common-law marriage could find themselves in divorce court dividing their assets and debts without ever having been to the altar or JP.
So, what exactly is a common-law marriage, and how do you
know if you’re in one? Under the current Texas Family Code, only a man and a
woman are considered legally married under certain if certain conditions are
present. First, there must be agreement to be married. In other words, the
parties must have the intent to have a present, immediate and permanent marital
relationship between them. An agreement remarried in the future is simply not
enough. Second, the couple must live in Texas as husband and wife. This is
often referred to as cohabitation, not be confused with a consummation of the
marriage. It’s more than just having sexual relations under common roof.
Essentially, the couple must live together as spouses and maintain household.
However, the cohabitation of the spouses does not have to be continuous but the
length of time at the residence could be a factor to consider. Other elements
that might be important to prove the cohabitation element include whether there
are bills in the name of both parties that come to the residence, if other
occupants are living at the residence, personal belongings that the parties may
keep at the residence and whether the residence is owned by both parties or if
a lease is in both parties name.
Finally, the third element to prove a common-law marriage exists relates to whether the parties hold themselves out to others as husband and wife. In other words, they must represent to others in Texas that they have a marriage together. This must be open and transparent to the community and not just to their close friends and family. Moreover, the representations must be made by both parties. For example, references to one another as my spouse, or my husband, and a company picnic are important factors. Equally important would be the use of a common last name for any children.
Of course, in order for a common-law marriage to be valid, neither party can be legally married to someone else. Nor can the two parties be related to each other as would make any other traditional marriage void in Texas as well. Both parties must be at least 18 years of age.
Currently, the statute relating to common-law marriage refers to “husband and wife” and this does not conform with the most recent United State Supreme Court ruling in Obergefell v. Hodges , 135 S.Ct. 2584 (2015) which made same-sex marriages legal throughout the country. It is presumed by many family law attorneys in Texas that the state legislature will modify the current law relating to common-law marriage in order to cover same-sex couples. If this does occur, it is expected that while the elements to established common-law marriage will not change, the factors necessary to prove the marriage in the event one “spouse” seeks to divorce the other will prove critical to success in the case. For example, how can a same-sex couple have a present, immediate agreement to be married prior to the date upon which it was first legalized by the Supreme Court? With their common-law marriage become valid only on the date the court made its ruling, despite the fact the couple had been cohabitating for years before? Alternatively, with the common-law marriage exist between them only on the date that Texas successfully in acts and modifies its common-law marriage statutes? These are but a few of the variants to questions they’re going to arise and fill our courts of appeal for years to come until a definitive and established set of rules and principles are known.If you are contemplating a separation or divorce from a common-law spouse, and these issues are relevant to your case, I encourage you to seek out the advice of a family law attorney to discuss your options and strategy moving forward. At Musemeche Law, PC, we have nearly three decades of family law and trial experience. Give us a call today at 281.475.4145 to schedule an appointment.
In Texas, the short answer is "maybe." The concept of an informal marriage, sometimes referred as Common Law marriage, does exist in Texas. According to current law, (which may undergo a major re-write in this upcoming session of the Legislature) the marriage of a “man and woman” can be proved by evidence showing certain conditions have been satisfied as follows:
1. The man and woman agreed to be married, and after the agreement,
2. Lived together in Texas as husband and wife; and
3. Represented themselves to others that they were married.
If all three elements are present at the same time , there is a presumption that the couple is married, and under Texas law, that means the rules regarding community property apply to the income and property acquired by the couple. The couple remains “common law” married until a divorce is filed and finalized. Note that the current law specifically states a common law marriage is between a “man” and “woman.” The law also makes a reference to living together as “husband” and “wife” in order to prove the informal marriage. It is expected that the Texas Legislature will modify the current marriage statutes to comply with a recent United States Supreme Court ruling that affirmed the validity of same-sex marriages. When this change is made, same sex couples who have been living together in a committed relationship could find themselves at the courthouse too, in a divorce action for common law marriage, assuming the other elements are met.
It is also important to understand that the amount of time a couple lives together is not the determining factor of whether or not there is a common law marriage. As long as all three of the elements are present at the same time, an informal marriage can spring into existence at anytime, even if that is on the first day of living together. On the other hand, a couple living together for years may not be married if they didn’t represent themselves to others as being married, or have initially agreed to be married to each other. In other words, just because you “play house” doesn’t mean you’re married…. it does require more.
If you want to prove you have a valid informal marriage, you’ll need to prove the three requirements of the informal marriage as stated above at the beginning of this blog. And, to prove the three requirements, one must introduce evidence on each point. Often, the testimony of witnesses and the parties to the marriage is crucial. A witness can testify that your common law spouse introduced him/her as your husband/wife in social situations. Other evidence to prove this element could include documents such as a tax return being filed as a married couple, or insurance policies listing one person as the other person's spouse. Additionally, there are other factors that are required in order to be informally married (and thereafter divorced) in Texas. For example, the couple must each be 18 years of age or older; they must not be related to each other according to law; and neither one can be already married to someone else.
While there is no specific, strict statute of limitations on a divorce action involving a common law marriage, it is important to understand that Texas law states as follows: “if a proceeding in which a marriage is to be proved . . . is not commenced before the second anniversary of the date on which the parties separated and ceased living together , it is rebuttably presumed that the parties did not enter into an agreement to be married.” (Texas Family Code, §2.401) (emphasis added). In other words, the divorce case of a common law marriage should be filed within two years of separation, or it is presumed there was no agreement to be married (the first required element).
Moreover, because community property laws apply to an informal, or “common law” marriage, it is wise to discuss your particular situation with a family law attorney who can provide advice and counsel on these issues, including a potential division of all assets and liabilities that exist between the couple on the date of divorce.At Musemeche Law, PC, we’re ready and able to provide a full range of legal services and advice on common law marriages. Feel free to call today for an appointment.
No, that's not a misprint. And, while lifetime spousal support after divorce is certainly not the norm, Texas courts do have the power and authority to order alimony (we call it spousal maintenance) if specific criteria are met, and the duration of time for the award can absolutely be unlimited under certain conditions.
general, a spouse seeking alimony must be legally “eligible” to receive the
maintenance support. When parties
divorce in Texas, not only does the court divide community property, but it
also has the discretion and power to order recurring payments from one spouse
to the other in the event that the spouse seeking maintenance will lack
sufficient property (including separate property) to provide for his/her
minimum reasonable needs. Interestingly,
there is no definition of “minimum reasonable needs” in the Texas Family
Code. Accordingly, the courts are faced
with a fact-specific analysis in each case.
In this regard, courts generally consider evidence of the following
expenses to be part of the spouse’s reasonable minimum needs: rent/mortgage, property taxes, automobile
payments, utilities, gasoline, groceries, drugs and medicine, clothing, and
child care costs.
assuming a spouse satisfies the first element of proving their eligibility for
post divorce maintenance, the spouse seeking alimony must also pass the second
prong of the eligibility test by establishing one of the following four
pathways to receive the support.
- Evidence that the requesting spouse
is the victim of family violence resulting in a conviction or deferred
adjudication that occurred within 2 years before suit was filed or while
- Evidence that a disability exists
which prevents the requesting spouse to earn sufficient income due to an
incapacitating physical or mental disability;
- A marriage that has lasted at least
ten years, and the requesting spouse is unable to earn sufficient income to
meet his/her minimum reasonable needs; or
- The requesting spouse is caring for a disabled child which causes the spouse to be unable to earn sufficient income.
Once both prongs of the eligibility test have been met, the court must determine the duration of support. There is a presumption that courts will limit support payments to the shortest reasonable period of time necessary for the spouse seeking alimony to earn sufficient income to provide for their own minimum reasonable needs. Indeed, the legislature has established certain periods of time for the maximum duration of support as follows: if the basis for spousal maintenance is an act of family violence, or if the length of marriage is at least ten years, but less than 20 years, then the court may only allow support for a maximum period of five years. If the marriage was at least 20 years in length, but less than 30 years, then the duration of alimony can last no more than 7 years. If the marriage is 30 years or more at the time of divorce, then the alimony can be awarded for no more than 10 years.
However, if the spousal maintenance award is based upon a spouse’s inability to earn sufficient income due to an incapacitating physical or mental disability -- there is no maximum length of time for the award of post divorce spousal maintenance. Instead, the court maintains jurisdiction to order the support as long as the spouse meets the eligibility criteria.
Finally, once it is determined that a spouse is eligible for maintenance, and the length of time has been set, the maximum amount of support to be awarded to the requesting spouse is based upon the following: either 20% of the obligor’s average monthly gross income; or $5,000 – whichever amount is less. There is no requirement that spousal maintenance completely eliminate a requesting spouse’s shortfall of their monthly needs.
In conclusion, the amount of alimony to be awarded in a divorce is determined on a case by case basis, and the court is guided by a multitude of factors including the length of marriage and the actual needs of the requesting spouse. For these reasons, and because the court maintains jurisdiction to modify or terminate the alimony award even after the divorce is final, it is important to discuss your individual situation with a family law attorney familiar with these subjects.