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How Does Common Law Marriage Work in Texas?

Marriage typically requires a couple to observe certain legal formalities. For example, here in San Antonio the parties would normally apply for a marriage license with the Bexar County clerk. Once the clerk issues the license, the couple then has 90 days to solemnize the marriage in a ceremony performed by an officiant.

So what if a couple decides to skip all that and simply live together as spouses? Texas law does recognize such informal or “common law” marriages. But there are still certain laws that a couple must follow for their informal marriage to be considered legal.

The Facts and Myths of Informal Marriage

There is a longstanding myth that if a couple lives together for at least 7 years, they are automatically considered to be in a common law marriage. This is simply not true. First of all, the majority of U.S. states do not recognize informal or common law marriages of any kind. A few states, such as Georgia, only recognize such marriages if they were in effect before a certain date. And the states that do allow common law marriage generally do not base recognition on how long the parties have lived together.

Another thing to note is that legal “common law” marriage in Texas really has nothing to do with the common law anymore. There is now statutory law governing informal marriage. Texas Family Code 2.401 establishes how a couple can prove they are in an informal marriage. There are basically two methods:

  • The couple signs a “Declaration and Registration of Informal Marriage,” which is then filed with a Texas county clerk.
  • The couple “agreed to be married and after the agreement they lived together in the state” as spouses and they represented to others that they were married.

This second method can lead to complications, particularly if one party later claims there was no informal marriage. The law requires proof of both an agreement to be married–as opposed to an engagement or an agreement to marry in the future–and actually holding themselves out as married to others. Basically, if you are in an informal marriage it cannot be a “secret.” You must actually tell people you are married. Additionally, specific actions such as wearing wedding rings or filing a joint tax return can serve as additional evidence of a marriage relationship.

Who Is Barred from Informal Marriage in Texas?

Under Texas law, an informal marriage is invalid if:

  • either party is under the age of 18;
  • they are married to someone other than the person they claim to be in an informal marriage with; or
  • the parties are related to one another by blood or adoption.

Although the wording of the Texas informal marriage statute still refers to a married couple as a “husband and wife,” it is legal for a same-sex couple to enter into an informal marriage.

Is a Texas Informal Marriage Legal in Other States?

As previously noted, most states do not recognize informal or common law marriages. However, this only applies to marriages entered within the jurisdiction of that state. The United States Constitution requires all states to give “full faith and credit” to the legal acts of every other state. This means that if you have entered into a valid informal marriage in Texas, every other state must recognize you as married.

Can You Get a Divorce in an Informal Marriage?

There is no such thing as an “informal” or “common law” marriage divorce in Texas. If a couple is in a legally recognized informal marriage, they need to go through the same process to obtain a divorce as any couple in a formal marriage. Of course, if one party seeks a divorce from an informal marriage, the other party may argue that no informal or common law marriage existed in the first place. A separate legal proceeding may be necessary to resolve that issue before the divorce can proceed.

You might be wondering, “What if the parties just split up and go their separate ways without a divorce?” Put another way: Can the parties just pretend the marriage never existed if it was “informal” to begin with? In theory, that is possible. The problem is that without a divorce or any formal separation agreement, the legal rights of both parties could be in limbo. For example, what happens to the common law couple’s property? Or if they have common children, what are the custody and visitation arrangements? These are questions that often need to be resolved through a formal divorce proceeding, even if the marriage itself was informal.

So if you are looking to get out of a common law or informal marriage, it is in your best interest to speak with a qualified San Antonio, Texas divorce lawyer who can review your case and advise you of your rights. Call The Law Office of David J. Rodriguez, PLLC, today at (210) 716-0726 or fill out our online form.