Cameron Miranda
In Texas, common-law marriage, also known as informal marriage, is a legally recognized marriage that grants the same rights and responsibilities as traditional marriages. To prove a common-law marriage, couples must meet specific criteria and provide adequate evidence, as the law can be complex. One easy way to establish a common-law marriage in Texas is to fill out a declaration of marriage form with the clerk of court or county clerk, which serves as proof of a valid marriage. If couples choose not to declare their common-law marriage, they can still prove their marriage through other means, such as lease agreements, tax returns, insurance policies, social media posts, and other correspondence referring to each other as spouses.
| Characteristics | Values |
|---|---|
| Recognition of common-law marriage | Texas is one of the few states that still allows common-law marriage |
| Legal recognition | Common-law marriage is legally recognised in Texas and carries the same rights and responsibilities as a formal marriage |
| Requirements | Couples must live together, agree that they are married, and hold themselves out to others as a married couple |
| Proof of marriage | Couples can register their common-law marriage by filing a Declaration of Informal Marriage with their county clerk's office |
| Documents | Lease agreements, tax returns, insurance policies, social media posts, emails, letters, and other correspondence may be used as proof of a common-law marriage |
| Court proceedings | If no declaration was filed, couples may need to go to court to prove their common-law marriage, especially if there is a dispute |
| Statute of limitations | Texas law places a two-year statute of limitations on court proceedings to prove a common-law marriage |
| Divorce | Common-law marriages must file for divorce if they decide to separate, and property and debts are divided as they would be in a formal marriage |
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What You'll Learn
Declare your common-law marriage
In Texas, common-law marriage is known as "informal marriage". To declare your common-law marriage, you must prove the following:
- Agreement to be married: Both parties must agree that they are married. This can be proven through testimony from either partner, friends, or family members. Actions and conduct can also be used as evidence to support this claim. For example, consistently referring to each other as husband and wife in public or wearing wedding rings.
- Cohabitation: The couple must live together in Texas as "husband and wife". They must establish a household together and live day-to-day like couples in a traditional or formal marriage. Evidence of cohabitation includes a shared mailing address, owning a home and paying a mortgage together, or having both names on a lease agreement.
- "Holding out" to others as married: Both parties must represent to others that they are married. This can be proven through testimony from friends, family, or community members who can attest that the couple introduced themselves as married. Other documents such as tax returns, insurance policies, joint purchases, and loan applications can also be used as evidence.
The easiest way to declare your common-law marriage is to fill out a "Declaration of Informal Marriage" form with your county clerk. This form serves as proof of your marriage and confirms that you meet the above requirements. You can obtain this form from your county clerk's office or through TexasLawHelp.org. Once signed, your common-law marriage is legally recognized, and you are considered married for all legal purposes.
It is important to note that if you separate from your common-law spouse, you must take legal action to prove your marriage within two years. If no action is taken within this time frame, it is assumed that there was never an agreement to be married.
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Provide proof of cohabitation
To prove cohabitation for a common-law marriage in Texas, you must show that you and your partner meet the following three requirements simultaneously:
- Agree that you are married: There must be evidence of a present, immediate, and permanent intention to have a marital relationship. An agreement to get married in the future does not count.
- Live together as husband and wife: This is the co-habitation requirement, which is usually straightforward to prove.
- "Hold out" to others that you are married: This means actively representing to others that you are married. This can be done through words or actions, such as introducing each other as spouses, wearing rings on ring fingers, signing credit applications as a married couple, filing joint tax returns, adding your partner to a "family" membership, or using spousal addresses on envelopes.
Documents such as lease agreements, tax returns, insurance policies, joint purchases, loan applications, and credit applications signed by both partners can be used as proof of cohabitation and marriage. These documents may be requested by a court to prove a common-law marriage.
It's important to note that proving a common-law marriage in Texas is not dependent on the length of time you have been together or whether you have children together. Once proven, a common-law marriage is legally valid, and property and debts are divided in the same way as a formal marriage.
If you wish to formally register your common-law marriage, you can sign a Declaration of Informal Marriage with your county clerk. This declaration serves as valid proof of marriage, and you are then considered married for all legal purposes.
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Prove agreement to be married
To prove a common-law marriage in Texas, both parties must agree that they are married. This means that there must be evidence establishing a present, immediate, and permanent intention to have a marital relationship. An agreement to get married in the future does not count as establishing a common-law marriage.
There is no requirement for a certain length of time to prove a common-law marriage. However, if two years pass after a common-law marriage couple separates and neither party has filed anything to prove the marriage, it is presumed that the marriage never existed.
Evidence of an agreement to be married may include:
- Living together
- Telling others that you were married
- Using your partner's last name
- Filing joint tax returns as spouses
- Signing leases or other documents as spouses
- Making joint purchases
- Including your partner on your health insurance
- Making your partner the beneficiary of a life insurance policy
- Making joint loan applications or agreements
- Applying for public benefits and listing your partner
If there is a dispute as to whether a common-law marriage existed, it may be necessary to go to court to prove the marriage. Texas law places a two-year statute of limitations on these types of proceedings.
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Represent yourself as married
To represent yourself as married in Texas, you must meet the requirements of a common-law marriage. This means that you must:
- Agree that you are married
- Live together as husband and wife
- "Hold out" to others that you are married
All three conditions must exist simultaneously to establish a valid common-law marriage.
To "hold out" to others that you are married, you must represent to others that you are married. This can be done through actions and conduct, such as introducing each other as spouses, wearing rings on ring fingers, signing credit applications as a married couple, filing joint tax returns, adding your partner to your "family" country club membership, or using your partner's last name.
It is important to note that there is no durational requirement for a common-law marriage in Texas. However, if two years pass after a common-law marriage couple separates and neither party has filed anything to prove the marriage, the state presumes that the marriage never existed. Therefore, if you are trying to prove a common-law marriage, it is important to act quickly.
If you are looking to end a common-law marriage in Texas, you must file for divorce. Texas law states that all property acquired during a common-law marriage is community property and will be divided the same as if the parties were formally married. Debts accumulated during the marriage are also divided between the spouses.
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File joint tax returns
In Texas, a common-law marriage is a valid and legal way for a couple to marry. To prove a common-law marriage, both parties must meet the following requirements:
- Agree that they are married
- Live together as husband and wife
- "Hold out" to others that they are married
One way to fulfil the third requirement is by filing joint tax returns. If you are filing taxes as a common-law married couple in Texas, you must file as married and cannot file as single. This is because the IRS follows state law to determine your marital status for tax purposes. Therefore, if you are considered legally married in Texas, you will be considered married by the IRS.
When filing jointly, you report your combined income and deduct your combined allowable expenses. Both spouses must sign the income tax return and are responsible for any tax owed.
It is important to note that there is no such thing as a "common-law divorce". Once a common-law marriage is established, it is treated the same as a ceremonial marriage and must be terminated with a standard divorce suit or annulment.
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Frequently asked questions
You will need to fill out a Declaration of Informal Marriage form with your county clerk. This document requires you to swear that you and your partner agree to be married, that you live together, and that you act as a married couple in your community.
If you and your partner are in disagreement, you may need to prove your marriage in court.
You will need to prove three elements: 1) that you and your partner agreed to be married; 2) that you lived together in Texas; and 3) that you act as a married couple to the public. Evidence may include testimony from either partner, friends, or family members, as well as conduct or other acts showing there was an agreement.
If you are separated for more than two years and have not taken any action to end the marriage, it is assumed that you and your partner never intended to be married.
Two ways to protect yourself if a common-law marriage is not your intention are to refrain from introducing your partner as your spouse and not filing tax returns jointly.
