Anaya Nolan
Texas is one of a minority of U.S. states that recognize common-law marriages, which are also known as informal marriages. To be considered married under Texas common law, couples must prove that they have met three conditions: they mutually agreed to be married, they cohabitated in the state as a married couple, and they represented themselves to others as a married couple. If a common-law couple decides to separate, they must file for divorce within two years of their separation.
| Characteristics | Values |
|---|---|
| Recognition of common-law marriage | Recognized in Texas |
| Same-sex common-law marriage | Recognized in Texas |
| Requirements for common-law marriage | Must live together, agree to be married, and hold out to others that they are a married couple |
| Divorce | Couples must file for divorce to terminate a common-law marriage |
| Statute of limitations | Two years |
| Property | All income, property, and debt acquired during the common-law marriage are considered community property |
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What You'll Learn
Common-law marriage requirements
Texas recognizes common-law marriages for both opposite-sex and same-sex couples. A common-law marriage, also known as an informal marriage, is a valid and legally binding way for couples to marry without a ceremony or marriage license.
To establish a common-law marriage in Texas, couples must expressly demonstrate their intent to marry and must have the capacity to marry. This means that they must not be related by blood or adoption, and they must not already be married, informally or formally, to anyone else.
To prove a common-law marriage in Texas, the following three requirements, outlined in Texas Family Code Sec. 2.401, must be met simultaneously:
- Mutually agree to be married
- Live together in Texas as a married couple
- Represent to others that they are married
The easiest way to prove a common-law marriage is for the couple to go to the county clerk's office together and sign a declaration of informal marriage. This validates the marriage as legal and entitles the couple to the same rights as formally married couples.
If a common-law couple decides to separate, they must file for divorce, just like a formally married couple. If court proceedings are not filed within two years of separation, Texas law presumes the marriage never existed unless proven otherwise.
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Common-law divorce
Texas recognizes common-law marriages, which means that a couple must file for divorce to legally dissolve the union. This is the only way to ensure that your interests are protected and to avoid problems in the future. The process for getting a divorce for a common-law marriage is the same as for a formal marriage. However, common-law couples will have to prove to the court that they met the requirements to be considered married under common law.
A common-law marriage, also known as an informal marriage, is not officiated by a clergy member or performed through a civil ceremony, and there is no marriage license. However, it is recognized as a valid marriage in Texas as long as certain legal requirements are met. There are two ways to establish a common-law marriage in Texas. The first way is to sign a "declaration of informal marriage" with the county clerk's office. The second way is outlined in Section 2.401 of the Texas Family Code and states that the parties must agree to be married, live together in Texas as husband and wife, and hold themselves out to the public as husband and wife.
If a common-law marriage is established, then the spouses hold all of the same legal rights as a couple who have a marriage license. These rights become important in the event of a death or a divorce, especially if the couple shares children, property, and assets. If a common-law marriage is not established and the couple later decides to separate, then they will not have the same legal protections as a married couple. This can cause problems with property division, custody arrangements, and spousal support.
Texas has a two-year statute of limitations, which means that if no party decides to petition for divorce within two years of separation, it is assumed that the couple was never married. However, if court proceedings are not filed within two years of the separation, it may be harder to prove the existence of a common-law marriage.
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Common-law inheritance
Texas does not impose a state inheritance or estate tax. The state repealed the inheritance tax beginning on September 1, 2015. However, you will likely have to file some taxes on behalf of the deceased. Texas inheritance laws are straightforward, but if you die without a will, the distribution of your assets will be left up to the state's intestate succession process.
In Texas, having a testate will means it will almost always be executed exactly as you wish. Therefore, inheritance laws really only apply to people who died without a valid will. For estates greater than $75,000, the probate process ensures that the will of the deceased is executed as intended. The court appoints the executor named in the will to manage the estate, protecting and distributing the decedent's assets, and taking care of their debts and liabilities. Any estate worth less than $75,000 is not required to go through the court. Instead, after 30 days since the individual's death, heirs can file a small estate affidavit with the court that has jurisdiction over the estate.
Estates with no will or a will not probated by Texas courts within four years of the deceased's death can be inherited via an affidavit of heirship. This document must be signed by someone with knowledge of the decedent and their family, as well as a public notary, to transfer the estate to the decedent's heirs at law. A separate affidavit of heirship is available for vehicles through the Texas Department of Motor Vehicles.
Under the new Texas inheritance laws, if a married person with no children passes away without a will, their entire estate goes to their spouse, even if they have siblings, parents, or other family members. This only applies to childless couples. If there are children from previous relationships, they may still be entitled to a portion of the estate.
Common-law marriages are legal in Texas. To prove a common-law marriage, couples must live together, agree that they are married, and hold themselves out to others as a married couple. They must not be married to anyone else, either formally or informally. Proving a common-law marriage can be important for determining inheritance rights. Under Texas law, all property acquired during a common-law marriage is community property, and debts and assets are divided as they would be for a formal marriage. If a common-law marriage cannot be proven, there is no marital property or debt to divide, and each party keeps their personal property and remains responsible for their debts.
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Common-law marriage recognition in other states
Texas is one of the few states that recognize common-law marriages, also known as informal marriages. These marriages do not require a marriage license or traditional ceremony, but they do have serious legal consequences, especially when they dissolve.
If a couple establishes a valid common-law marriage in Texas, other states will recognize them as married. This is because of the US Constitution's Full Faith and Credit Clause, which states that states must respect other states' laws. This means that states without common law marriage must still recognize a common-law marriage from another state, as long as the couple's relationship meets all the requirements of a common-law marriage while living in a common-law marriage state.
As of 2022, common-law marriages are recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage.
The recognition of common-law marriages varies across states. For example, in California, a common-law marriage validly contracted in another jurisdiction is valid, but a common-law marriage that was not validly contracted in another US jurisdiction is not. In Utah, the government claims that common-law marriage does not exist, but other legal websites state that "non-matrimonial relationships" may be recognized as marriage within one year after the relationship ends.
The requirements for a common-law marriage also vary across states. Generally, couples must be old enough to get married (usually 18 years old) and have the mental capacity to enter into a marriage. They must also demonstrate their intention to be married, such as by presenting themselves to family, friends, and the community as a married couple, using words like "husband," "wife," or "spouse" when referring to each other, and filing taxes jointly. However, the specific requirements and evidence needed to prove a common-law marriage can be complex and challenging, especially if one partner denies the marriage.
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Common-law spousal support
Texas recognizes common-law marriages. Common-law marriages are valid and legal in Texas, and are considered equal to formal marriages. To prove a common-law marriage, the couple must live together, agree that they are married, and present themselves as a married couple to others.
Spousal support in Texas is generally something that divorcing parties agree to in their divorce settlement. The Texas Family Code outlines three standards for awarding spousal maintenance: the duration of the marriage, the spouse's ability to meet their minimum reasonable needs, and any disability or care responsibilities of the spouse. The spouse seeking maintenance must prove that they lack sufficient property or income to provide for their needs, and that they are either disabled, a caretaker for a disabled child, or lack the earning ability to provide for themselves.
The duration of the marriage plays a significant role in determining the length of spousal support. For marriages lasting between 10 and 20 years, support can be awarded for up to five years. For marriages between 20 and 30 years, support can be extended to a maximum of seven years. Marriages over 30 years can result in spousal support for no more than 10 years.
It is important to note that proving a common-law marriage is crucial when seeking spousal support. This can be done by registering the relationship with a declaration in the county, which makes it easier to seek spousal support and divide assets. Working with a divorce attorney can help navigate the complex legal process and ensure the best financial outcome.
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