Texas Divorce Laws

What Is a “Common Law” Marriage in Texas?

By:
Sophia Merton
Updated
May 4, 2022

There are eight states in the U.S. that legally acknowledge common-law marriages, and Texas is one of them. What is a "common law" marriage, exactly? Why would a couple choose to get a common law marriage in Texas rather than having a formal marriage?

Some people might choose to sign a Declaration of Informal Marriage with the county clerk, which serves as valid proof of marriage without having to go through the formal process. Others might want to prove that they had agreed to be married for the purposes of determining inheritance rights or in order to split their property and debts in a divorce.

Filing this declaration can help to avoid issues down the road. However, it isn't necessary in order to be legally married in the eyes of the law. Without filing the declaration, though, you might have to eventually go to court to prove that the marriage existed.

Are you wondering what you need to know about common law marriage in Texas? We've put together the ultimate guide to help you understand the ins and outs of informal marriage in the Lone Star State.

What Is a Common Law Marriage?

couple married under common law by the water

A couple married under common law in Texas enjoys the same rights and responsibilities as those that get married formally.

Common-law marriage is a legal and valid way for couples to get married in the state of Texas. People that are married by common law are legally married even though they didn't have a ceremony or go through other formalities typically associated with marriage. When a couple has proven a common law marriage, their union is just as legally valid as a formal marriage and doesn't experience a "lesser status."

Also referred to as an informal marriage or a marriage without formalities, there are a number of conditions that must be met in order for a couple to be married by common law.

In order for a couple to be common law married in Texas, they must have:

  • Agreed to be married
  • Represented to other people that they were married
  • Lived together as husband and wife in Texas after the agreement

Additionally, in order to prove a common-law marriage in Texas, you and your partner must have been at least 18 years old when the marriage was created. A common law marriage is also only valid if neither of you was already married to anyone else when the marriage was created, either formally or informally. Lastly, couples must not be related to one another by blood or adoption.

It's worth noting that the Texas statutes still use the language "as husband and wife." This has not been amended since the Obergefell v. Hodges Supreme Court decision that legalized same-sex marriage in the United States. Even though the wording doesn't accurately reflect what it would mean to be in a common-law marriage for same-sex couples, the state of Texas does, in fact, recognize same-sex common-law marriages.

Gay marriage has been legal in Texas since 2015. To learn more about same-sex marriage and divorce in the Lone Star State, check out this article.

Myths About Common Law Marriage in Texas

There are a number of common misconceptions about common-law marriages. It's important to understand what is true and what isn't when it comes to common-law marriage to ensure that you have the legal protections you and your partner desire.

Myth #1: Common Law Marriage Is Created By Living Together For a Certain Amount of Time

couple living together on a roof

Contrary to popular belief, living together for a certain length of time does not mean you and your partner are automatically married under common law.

One of the most pervasive myths about common law marriage is that you are automatically common-law married if you live together for a certain period of time. Many people believe that if you live together for seven years you are informally married by default. This is not the case in Texas or anywhere in the U.S., for that matter.

Myth #2: Common Law Marriage Is a Loophole to Avoid Divorce

Another myth about common law marriage is that it exists as a loophole in order to avoid divorce. If you and your partner are married by common law and you decide to end the marriage, it will be treated in basically the same way as if you had gotten married formally.

In order to dissolve a common-law marriage, a standard divorce suit or annulment must be used. The marriage is also terminated if one of the parties passes away.

If you and your partner separate physically and have proven that you are common-law married, the legal designation as a married couple does not simply dissolve on its own. You must go through the process of legally divorcing if you want to end a common-law marriage.

However, it's important to note that you might not be permitted to file for divorce even if you meet all of the requirements for a common-law marriage. If you and your partner have separated for two years or more before filing for divorce, a rebuttable presumption applies, assuming that the marriage does not exist.

What States Recognize Common Law Marriage?

There are only a handful of states that recognize common law marriage, and each state has its own laws about what relationships are considered to be legal marriages. The states that recognize common-law marriages are:

  • Texas
  • Utah
  • Rhode Island
  • Montana
  • Iowa
  • Kansas
  • Colorado
  • Alabama

The District of Columbia also recognizes common law marriage. A few other states recognize common-law marriages but with specific stipulations. These are:

  • Georgia (only if the marriage was created before 1997)
  • Idaho (only if the marriage was created before 1996)
  • Ohio (only if the marriage was created before 10/10/1991)
  • New Hampshire (only for inheritance purposes)
  • Oklahoma (potentially only if the marriage was created before 11/1/1998, but their laws and court decisions are unclear about whether common-law marriages are recognized when created after 11/1/1998)
  • Pennsylvania (only if the marriage was created before 1/1/2005)

If you live in a state that doesn't recognize common law marriage, there isn't any way to form an informal marriage. It is possible that you could get common-law married in a state that recognizes informal marriages and live there for a time before moving to a state that doesn't recognize common law marriage and still have the state recognize your marriage. However, this is a gray area and there isn't any certainty that your marriage will be recognized as legally valid in one of these states.

When Do I Need to Prove Common Law Marriage?

couple walking on bridge common law marriage

The two primary instances when you might need to prove common law marriage are regarding issues of inheritance and divorce.

There are two primary circumstances where you might need to prove the existence of a common-law marriage. These are when determining inheritance rights and when a relationship is ending.

Inheritance

If your partner passes away without a will and you are formally married, you are entitled to an inheritance from their estate. If you and your spouse are common law married, you will need to prove your marriage in order to claim a share of their estate.

Divorce

Texas law is a community property state. This means that any and all property that is acquired during a marriage, whether common law or formal, is considered community property.

If you are able to prove a common-law marriage, the community property in your marriage will be divided exactly as it would be if you were formally married.

It's worth noting that debts that were acquired during the marriage are also divided between the two partners.

If you are unable to prove that you are common law married, there are no marital assets or debts to be divided in the eyes of the court. In this case, both you and your partner would keep the property titled to you and your personal property. You will also both remain individually responsible for the repayment of your debts.

Your ability to prove a common-law marriage in the face of divorce has an impact on how property and liabilities are dealt with after the relationship ends.

How Do I Prove That My Partner and I Have a Common Law Marriage in Texas?

couple in common law marriage in texas

The easiest way to prove a common law marriage in Texas is to have signed and submitted a Declaration of Informal Marriage.

If you and your partner satisfy the criteria outlined above regarding the qualifications for a common-law marriage, you can choose to sign what is known as a Declaration of Informal Marriage. This is a document you sign and submit with the county clerk.

This declaration serves as valid proof of marriage once it has been signed and submitted. For all legal purposes, you are now considered married. You can get one of these forms from your county clerk.

It's worth understanding that creating a common law marriage in Texas doesn't require that you fill out and submit one of these forms. However, doing so can provide official proof of your marriage in a way that allows you to benefit from the privileges and protections of legal marriage in Texas.

Can You Prove a Common Law Marriage Existed After the Relationship Has Ended?

If you are separated from a partner that you were once common law married to, you might have reasons that you want to prove your informal marriage. For example, you might want to prove the existence of the marriage for the purposes of child or spousal support.

In order to obtain a proper divorce, you will need to have met all of the elements of a common-law marriage for the time period you state that you were married. After you and your partner separate, you have a two-year period according to the Texas Family Code to prove that your common-law marriage was valid for the purposes of a divorce.

If you don't prove your informal marriage within this time period, there is a rebuttable presumption that there was no existing marriage. The courts will decide that you don't have the legal benefits of a divorce proceeding unless you can rebut or overcome this presumption with sufficient evidence.

Basically, the law presumes that the two of you never intended to be married if you are separated for more than two years without taking any action to dissolve the marriage.

Methods For Proving a Common Law Marriage in Texas

Courts can use a variety of facts to determine whether or not you and your partner are or were informally married. Some of the pieces of information that a court might use to determine whether you are common law married include proof that:

  • You lived together
  • One of you used the other's last name
  • You signed leases and other documents as spouses
  • You filed tax returns as a married person filing singly or as married people filing jointly
  • You included your partner on your health insurance
  • You made joint purchases
  • You made joint loan agreements or applications
  • You made your partner the beneficiary of a life insurance policy
  • You have children together
  • You told other people you were married
  • You listed your partner as "spouse" when applying for public benefits

Courts might not use any one of these pieces of proof on their own to determine that you are common law married. However, they might couple the facts together in a way that allows them to rule that you acted like a married couple and that other people believed you were married.

Same-Sex Couples and Common Law Marriage in Texas

All of the same guidelines for common-law marriage in Texas apply to same-sex couples, as well. In order for same-sex couples to be considered informally married in Texas, you must live in Texas after your agreement to be married. If you didn't live in Texas after you agreed to be married, you can't establish a common-law marriage in the state.

How Do I End a Common Law Marriage in Texas?

The process for ending a common law marriage in Texas is quite similar to ending a formal marriage. You have to file for divorce in order to dissolve your relationship. However, if you don't file court proceedings within two years of separating from your partner, the court assumes that the marriage never existed unless it is otherwise proven.

Are you wondering what you need to know about DIY divorce in Texas? Check out this article to learn more about getting divorced without a lawyer.

Are Prenups Valid For Couples Married Under Common Law?

Since 1980, Texas has constitutionally recognized premarital agreements, often referred to as prenups. When done correctly, these agreements are typically enforced by the court.

What about informally married couples, though? Would a prenup drafted before entering a common-law marriage hold up in court?

In a common-law marriage, you can create something known as a cohabitation agreement. These agreements intend to accomplish the same goals as prenups. The difference is that they are used by couples that live together but aren't married.

If you can prove that a marriage existed and you are filing for divorce, the process should be largely similar to dissolving a formal marriage. However, it would be wise to talk to a family law professional about your options if you are entering a common-law marriage but want to be able to outline how assets and debts will be dealt with in the case of a divorce.

Curious to know what the process is like for getting a prenup in Texas? Take a look at this guide to learn more.

What Are the Benefits and Drawbacks of Common Law Marriage in Texas?

You might be wondering why a couple would choose to be informally married rather than formally married. However, some spouses might not want to go through the formality of a wedding ceremony or they might want to save money by avoiding the costs of a formal marriage. It's also possible that a couple simply hasn't gotten around to formalizing their marriage, but they otherwise live together as spouses.

While common-law marriages offer the same protections under Texas law as formal marriage, common-law marriages require that you prove the marriage exists while formal marriage is automatically valid when you have your official ceremony.

Advantages of Common Law Marriage

One of the main benefits of common law marriage is that you and your partner will enjoy the same marital responsibilities and rights as any formally married couple without having to go through the formal process of getting married.

Some of the rights and responsibilities that common-law marriages receive just as formal marriages do include:

  • Hospital visitation rights
  • Healthcare benefits
  • Access to records
  • Jail or prison visitation
  • Child custody rights
  • Rights of inheritance
  • Spousal support rights
  • The right to make decisions about end of life or emergency medical care
  • Tax exemptions and deductions
  • The division of property in a divorce

Ultimately, the financial and legal pros and cons of common law marriage are roughly the same as those attached to formal marriage.

Disadvantages of Common Law Marriage

A common law marriage does come with some downsides when compared to formal marriage. The primary disadvantage is that you might have to prove that a marriage existed in the case of divorce or inheritance considerations.

In the case of a divorce, failure to be able to prove the existence of a marriage means that you won't be entitled to a divorce. This means that the typical process of dividing property and debts and determining terms relating to child custody, child support, and spousal support, won't apply.

If you and your partner break up but your spouse denies that you ever agreed to be married, you could end up without any of the property that would have been considered community property if it were a formal or recognized common-law marriage.

One way to largely avoid these downfalls is to sign a Declaration of Informal Marriage and submit it to your county clerk. This declaration is valid proof of the existence of the marriage. For all legal purposes, you are considered married in the eyes of state law.

Understanding Texas Laws Can Help to Protect Your Rights

If you and your partner don't want to get formally married, but you want to receive the same legal rights and responsibilities as a married couple, you can choose to file a declaration with your county clerk. This serves as valid proof of a marriage.

Without this declaration, you might still be considered legally married in the eyes of the law. However, it will be your responsibility to prove to the court that you and your spouse were living together as a married couple in the case of determining inheritance rights or if you choose to get divorced.

If you live in Texas and you don't want to get formally married for any reason, you are lucky to live in one of the few states that will grant you the same rights as formally married couples.

Understanding the Texas laws regarding marriage and divorce can be incredibly beneficial to any couple. This way, you can ensure that you are making decisions that best suit your family now and in the future.

If you're searching for more resources regarding the laws surrounding marriage and divorce in Texas, be sure to check out our growing library of articles at TexasDivorceLaws.org.

Written By:
Sophia Merton
Sophia received her BA from Vassar College. She is a researcher and writer that aims to help make the complexities of the legal system understandable to the layperson. Believing that people can be empowered by understanding their rights and responsibilities under the law, Sophia aims to offer accurate and well-researched information in straightforward and easy-to-digest legal articles.

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