Cecily Zamora
Texas is one of the few states that still allows common-law marriages, also known as informal marriages. There are two ways to establish a common-law marriage in Texas: by filing a declaration of informal marriage with the county clerk, or by proving to a court three elements: (1) the couple agreed to be married; (2) they lived together in Texas after agreeing to be married; and -(3) they act as a married couple would. This article will guide you through the process of proving a common-law marriage in Texas, including the requirements that must be met and the evidence that may be requested.
| Characteristics | Values |
|---|---|
| Recognition of common-law marriage | Texas law recognizes common-law marriages, also known as "informal marriages" or "marriages without formalities" |
| Requirements | Both parties must be at least 18, unrelated, not currently married to someone else, and eligible for marriage |
| Proof of marriage | Couples can register their common-law marriage by filing a Declaration of Informal Marriage with the county clerk. This serves as valid proof of marriage. |
| Other ways to prove marriage | Documents such as lease agreements, tax returns, insurance policies, witness statements, and other evidence of cohabitation and intent to be married may be requested to prove a common-law marriage. |
| Time limit | If two years pass after a separation and neither party has taken action to prove the marriage, Texas law presumes that the marriage never existed. |
| Inheritance rights | A common-law spouse is entitled to inheritance in the same way as a formal spouse. |
| Divorce | Common-law marriages must follow the same divorce procedures as formal marriages. Property and debts accumulated during the marriage are divided equally. |
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What You'll Learn
Declare your common-law marriage with the county clerk
In Texas, couples in a common-law marriage can register their union by filing a Declaration of Informal Marriage with their county clerk's office. This is not a mandatory step, but it can simplify the process of proving your marriage, especially in the event of a divorce or when determining inheritance rights.
To declare your common-law marriage, you and your partner must sign the Declaration of Informal Marriage form, which can be obtained from your county clerk. Once the form is signed, your declaration serves as valid proof of your marriage, and you are considered legally married.
It is important to note that Texas law requires more than just cohabitation to recognize a common-law marriage. To prove an agreement of marriage, there must be evidence of a present, immediate, and permanent intention to be in a marital relationship. This can include introducing each other as spouses, wearing rings on ring fingers, signing documents as a married couple, filing joint tax returns, or including your partner on your health insurance.
If you choose not to declare your common-law marriage with the county clerk, you may need to provide other documents as proof of your marriage in the event of a divorce or inheritance dispute. These documents may include lease agreements, tax returns, insurance policies, joint purchases, and loan applications.
Additionally, Texas law imposes a two-year statute of limitations on court proceedings to prove a common-law marriage. If you wait for more than two years after separating from your partner before taking legal action, it becomes more challenging to prove the existence of your common-law marriage.
Therefore, while declaring your common-law marriage with the county clerk is not mandatory, it can provide peace of mind and simplify future legal processes by serving as clear and valid proof of your marital status.
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Proving cohabitation
To prove cohabitation for a common-law marriage in Texas, you must show that you and your partner lived together as husband and wife. This is the most straightforward of the three requirements for proving a common-law marriage in Texas. The other two requirements are that both parties must agree that they are married, and that they "'hold out' to others" that they are married.
Cohabitation, or living together, does not need to be proven for a specific length of time. However, if you are separated for more than two years and have not taken any action to end the marriage, Texas law presumes that you and your partner never intended to be married, and it will be harder to prove a common-law marriage existed.
If you choose not to register your common-law marriage, documents such as lease agreements, tax returns, and insurance policies may be requested to prove cohabitation and the other requirements. Actions and conduct by each person are also examined, for example, introducing each other as spouses, wearing rings on ring fingers, or signing credit applications as a married couple could separately qualify as "holding out" to others that they are married.
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Proving intent to be married
To prove a common-law marriage in Texas, you must show evidence of the following:
- Both parties must be at least 18, unrelated, and not currently married to someone else.
- An agreement to be married. This must be a present, immediate, and permanent intention—an agreement to get married in the future is not sufficient.
- Cohabitation.
- Holding out to others that you are married. This means that you must represent to others that you are married. Spoken words can fulfill this requirement, but actions and conduct are also examined. For example, introducing each other as spouses, wearing rings on ring fingers, signing credit applications as a married couple, filing joint tax returns, adding someone to a "family" country club membership, and even the address on Christmas card envelopes can all be taken as evidence of holding out to others that you are married.
If you want to declare your common-law marriage, you can sign a Declaration of Informal Marriage with the county clerk. This is valid proof of marriage, and you will be considered married for all legal purposes.
If you do not declare your common-law marriage, documents such as lease agreements, tax returns, and insurance policies may be requested to prove the marriage. If there is a dispute as to whether a common-law marriage existed, it may be necessary to go to court. Texas law places a two-year statute of limitations on these types of proceedings.
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Proving representation of marriage to others
To prove a common-law marriage in Texas, both parties must fulfil three requirements simultaneously: they must agree that they are married, live together as husband and wife, and "hold out" to others that they are a married couple.
The "hold out" requirement means that both parties must represent to others that they are married. This is to ensure that there is no "secret" common-law marriage. Spoken words alone can fulfil this requirement, but actions and conduct by each person are also examined. For example, introducing each other as spouses, wearing rings on ring fingers, or signing credit applications as a married couple could separately qualify as "holding out" to others as married. Other examples include filing joint tax returns, adding someone to a "family" country club membership, and even the address on Christmas card envelopes. Oftentimes, the evidence that supports the "holding out" element also supports an agreement to be married.
If no declaration of common-law marriage was filed, and there is a dispute as to whether a 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.
If you want to prove a common-law marriage, you can sign a Declaration of Informal Marriage with the county clerk. Once signed, the declaration is valid proof of marriage, and you are considered married for all legal purposes.
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Dividing assets and liabilities
Texas is a community property state, which means that all property and earnings acquired by both spouses during a common-law marriage are considered community property. This includes assets and debts acquired during the marriage, which are typically regarded as joint property and joint responsibility.
In the event of a divorce, Texas law states that community property and debt should be divided in a "just and right" manner, which does not necessarily mean a 50/50 split. The court takes into account factors such as the financial resources and earning capacity of each spouse, as well as their separate property, to ensure a fair and equitable distribution.
Retirement benefits earned by either spouse during the marriage are also considered community property and can be divided by the court. This includes pensions, military retirement, 401(k) accounts, and more. If you want the judge to divide retirement benefits as part of your divorce, you must include specific information about the benefits in your Final Decree and ask the judge to sign a Qualified Domestic Relations Order (QDRO).
It's important to note that separate property, such as assets acquired before marriage or received individually during marriage (like inheritances and certain personal injury awards), remains individually owned and is not subject to division during a divorce. However, if money earned during the marriage is spent to improve separate property, the other spouse may argue for credit for a portion of the money spent.
To prove a common-law marriage in Texas, both parties must be at least 18, unrelated, and not currently married to someone else. The couple must also agree to the three elements listed in Section 2.401, which include the requirement to "'hold out" as married to others. This can be proven by introducing each other as spouses, wearing rings on ring fingers, signing documents as a married couple, filing joint tax returns, and more.
If a common-law marriage is not proven, there is no marital property or debt to divide. It is important to act quickly if you are seeking a divorce from a common-law marriage, as there is a two-year statute of limitations on these types of proceedings.
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Frequently asked questions
Common-law marriage, also known as marriage without formalities or informal marriage, is a valid and legal way for a couple to marry in Texas. It is a type of marriage that occurs without a formal marriage ceremony, marriage license, or marriage certificate.
One way to prove a common-law marriage in Texas is to fill out a Declaration of Informal Marriage form with the county clerk. This form acts as valid proof of marriage and is considered legal proof that you are married. You can obtain this form from the county clerk.
If you and your partner choose not to declare your common-law marriage, you may need to go to court to prove your marriage. Documents such as lease agreements, tax returns, insurance policies, and witness statements may be requested to prove your marriage.
