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.