Texas is one of only nine states and the District of Columbia that fully recognize common law marriages. Each one of the states has its own requirements in order for the marriage to be considered valid. If the requirements are met, then the common law marriage has the same effect as if the couple had actually gotten a marriage certificate and been married in an official matrimonial ceremony. That means that even if you were never officially married, you might still have to get a divorce when you break up with your partner in Texas.
What Makes a Common Law Marriage Valid in Texas?
Texas Family Code, Section 2.401, refers to an “Informal Marriage” and will recognize a common law marriage even if no declaration of marriage has ever been signed if evidence is presented to the court that all of the following criteria have been met:
1. Both parties are over the age of 18.
2. Neither party is married to anyone else.
3. They lived together in Texas after the agreement was made.
4. They represented themselves to the public as a married couple.
5. The couple had an agreement, either oral or in writing, to someday get married.
Do People That Separate After Being in a Common Law Marriage Have to Divorce in Texas?
If there is a valid common law marriage and the couple separates, they will need to obtain a divorce and the family law court will decide issues of property division, child custody and support and other matters the same as though the couple had obtained a marriage certificate. If there is no valid common law marriage, when the couple separates, courts have no jurisdiction to settle any matters. The first four requirements are usually easy to prove. The last two are more difficult.
A lawyer experienced with common law marriage divorce cases can help you achieve the results you desire in court. Even if you were never officially married, the divorce process is still very real and official. Professional legal counsel is highly recommended.
Evidence Required to Prove a Couple Presented Themselves as a Married Couple
It does not matter how many years a couple has lived together or whether or not they have children together. If they did not represent themselves to the public as a married couple, the fourth element is not met. Courts will accept any of the following evidence as proof the couple held themselves out to be married:
- A rental agreement signed by both parties referring to them as husband and wife.
- Tax returns, state or federal, that are filed jointly as husband and wife.
- Any insurance policy that names one of the parties as the beneficiary spouse.
- Loan applications in both names referencing them as husband and wife.
- Testimony of anyone who met or knows the couple that the couple represented themselves as a married couple to other people.
Texas courts have found the fourth element met upon the testimony of one witness who testified that one party introduced the other as “my spouse” and the one introduced did not deny it.
Declaration of Marriage
Texas Family Code, Section 2.402 has a provision for couples who have not been formally married to sign a document entitled “Declaration and Registration of Informal Marriage” and file it in the court of the county where they reside. The form must include
- The county of residence.
- The full name of each party, including the woman’s maiden name.
- Documentation proving identity and age.
- Declaration that the parties are not related to each other in any way, including by way of adoption or having been a stepchild or stepparent.
- A declaration and oath that the parties consider themselves married including the date they began living together and they are neither one married to anyone else.
- A certificate from the county clerk that the declaration and oath were made with the date of the declaration.
Statute of Limitations
Texas Family Code, Section 2.401(b), when a cohabiting couple separates, a party who wants to establish a common law marriage for purposes of applying the divorce laws, such as property division, child custody, visitation and support or spousal maintenance must prove the existence of the common law marriage within two years after the date upon which the couples separates. After that date, the court presumes there was no marriage. Although the presumption can be rebutted, it is much more difficult to do so after the two-year time limit has expired.
Contact a Common Law Marriage Divorce Lawyer
Call now to schedule an appointment with the Law Offices of Frank E. Mann P.C., an experienced common law marriage divorce attorney team with a reputation for excellence in court. Consultations are free, and our legal team will do everything in their power to achieve your desired outcome in family court. We proudly serve clients in the greater Houston area including family courts that reside in: Harris County, Fort Bend County, Montgomery County, Brazoria County, and other counties in the State of Texas.