Common-Law Marriage: Examples of Situations Where a Texas Court Found that No Common-Law Marriage Existed

1.    No Agreement to be Married:

·        Behavior that is consistent with courtship, such as holding hands and showing affection towards one another;

·        Marriage proposal and giving of an engagement ring;

·        Statements that parties were “trying out” their relationship and would later marry if everything worked out; and

·        A promise by one person to the other to stay with them during illness.

2.      No Holding Out:

·        An indication on a lease agreement or other contract that you do not have a spouse;

·        Evidence that only one person in the relationship ever stated to another that he or she was married;

·        Evidence that a man only told a few of his friends that he was married and the woman never told anyone; and

·        A woman stated upon being admitted to the hospital that she was single.

3.      No Cohabitation/Living Together:

·        Evidence that a man and woman never spent an entire night together;

·        A man and woman never moved any personal property into the same residence;

·        A man and woman never moved in together; and

·        A man and woman living in the same house but sleeping in separate beds in separate rooms.

Legal Effects of a Common Law-Marriage

 

If the Court makes a finding that a common-law marriage exists between you and another person, the common-law marriage has the same legal consequences as a ceremonial marriage. This means that you would have to file for divorce if and when the relationship ends just as you would if you had a ceremonial marriage. Once a common-law marriage is in existence the husband and wife cannot “undo it” by agreeing that they are no longer married.  Additionally, if a common-law marriage exists, then all property and debts accumulated during the duration of the common-law marriage that are community property are subject to division by the Court at the time of the divorce.

A common-law marriage between a man and a woman begins when all three of the following elements are satisfied at the same time in Texas:

1)     The parties agree to be married;

2)     The parties live together as husband and wife, and

3)     The parties represent to others in Texas that they are husband and wife, which is often referred to as “holding out” to others that you are husband and wife.

A common-law marriage ends when it is dissolved by death, divorce, or annulment.

 

Common-Law Marriage: 10 Ways to Know If You Could Be Involved In a Common-Law Marriage:

  1.  Filing a federal income tax return with the other person named as your spouse;
  2. Obtaining a life insurance policy and identifying the other party as your spouse and designating them as beneficiary;
  3. Purchasing a home or other real property where the deed is signed by you and the other person as husband and wife;
  4. Taking out a loan with the other person being identified as either your husband/wife;
  5. Sending cards or letters to the other party that state “from your loving husband,” or “to my loving wife;”
  6. Hosting or attending a party in Texas where you introduce the other person as your spouse;
  7. Signing a guest book at a wedding, etc. as “Mr. and Mrs.”;
  8. Your family members referring to him as their son-in-law;
  9. Introducing the other person to your colleagues, neighbors, and/or friends as your husband/wife; and/or
  10.  You and the other person have an agreement to live like husband and wife and be a married couple.

Next week I will be discussing examples of situations where Courts in Texas have either found that a common-law marriage existed or not, as well as the legal effects of a common-law marriage in Texas.

 

 

Common-Law Marriage: What You Should Know About Common-Law Marriage in Texas

 

Common-law marriage is recognized in Texas between a man and a woman who agree to be married, live together as husband and wife, and hold themselves out to others as husband and wife. Spouses that have a common-law marriage have not obtained a marriage license and have not participated in a marriage ceremony. 

As more and more people get away from the traditions of formal ceremonial marriages, it becomes more important to understand when and how you could find yourself in a common-law marriage relationship.   Over the next few weeks I will be discussing the definition and requirements to prove a common-law marriage in Texas, the top 10 ways to know if you are likely involved in a common-law marriage relationship, and the legal effects of a common-law marriage.

Today more and more couples are cohabitating prior to marriage, which is one element of common-law marriage in Texas. There are many misconceptions about common-law marriage. The most common misconception being that living with someone alone is enough to prove a common-law marriage relationship. That is not the case in Texas, since another element that must exist to prove a common-law marriage is that there was an agreement by both people to be married. It is possible to live with someone that you are in a romantic relationship with without there being an agreement to be married.

In order to meet the requirements of an informal/common-law marriage in Texas the man and woman must:

1)     Agree to be married;

2)     Live together as husband and wife, and

3)     Represent to others in Texas that they are husband and wife, which is often referred to as “holding out” to others that you are husband and wife.

All three elements must exist at the same time to establish a common-law marriage.

In addition to meeting the above requirements, you must also prove that both husband and wife have the capacity to enter into the marriage. In the state of Texas to have the capacity to enter into a common-law marriage, you must be members of the opposite sex, you must both be at least 18 years of age or older, you cannot be related, and you must not be currently married to someone else. If you can fulfill these requirements, then you know have the capacity to enter into a common law marriage. 

Proving a common-law marriage depends on the factual circumstances of each case. In making a determination of whether or not a common-law marriage exists, courts in Texas review the facts on a case by case basis.  

1)     Agreement to Be Married

To establish a common-law marriage the parties must agree to be married. The case law in Texas states that there must be evidence that shows that the parties intended to have a present, immediate, and permanent marital relationship wherein they both agreed to be husband and wife. An agreement to get married at some later time in the future is not sufficient to establish an agreement to be married.   If there is no written agreement to be married, your actions and the actions of the other party can be used to prove that there was an agreement to be married.

 

2)     Living Together/Cohabitation

In order to establish a common-law marriage the parties must live together in Texas as husband and wife. The requirement of living together for purposes of fulfilling this element of a common-law marriage requires more than just sexual intercourse under the same roof. The case law in Texas states that in order to prove cohabitation you must be living together as husband and wife, and you must be maintaining a household and doing things that are commonly done by a husband and a wife. There is no magic number for how long you must reside together in Texas in order to fulfill this requirement.

3)     Holding Out

In order to establish a common-law marriage the parties must represent to others in Texas that they are married. The case law in Texas states that the purpose of this requirement is that there can be no secret common-law marriage. Spoken words are not necessary to fulfill this requirement. The actions and conduct by each person may be enough to fulfill the requirement of holding out. 

Next week I will be discussing the top 10 ways to know if you are likely involved in a common-law marriage relationship, and the legal effects of a common-law marriage in Texas.

 

Am I Even Married? (Common Law Marriage)

     An Excerpt from the book, "Basis of Texas Divorce Law" co-authored by Michelle May O'Neil and Ashley Bowline Russell

Posted by Michelle May O'Neil on April 18, 2011

     A common law marriage is when a man and woman agree to be married and live together in Texas as husband and wife while representing to others that they are married.  Contrary to popular belief, there are no time requirements for establishing a common law marriage.  Provided there's an agreement to be married that the couple tells other people about, a couple could live together for one day, to establish a common law marriage.

     There are two ways to dissolve a common law marriage. The first is through traditional legal divorce procedures.  The second option is to separate and wait.  According to Texas Family Code, if no lawsuit to determine marital status is filed within two years after the separation of common law spouses, the law presumes there was no agreement to be married.

     Practically speaking, if there are children resulting from a common law marriage, it is better to pursue a traditional divorce.  This is also true if the two spouses obtained substantial amounts of property during the term of the marriage, as a divorce is an easier way to divide the property than through a traditional suit for partition between non-spouses. 

We were separated in New York, but reconciled and have been living together since '96 in Dallas. Am I still married?

I recently had a question from a potential client regarding common law marriage.  Turns out that this individual had separated from her husband in 1995 in New York (not divorced, but separated), the couple reconciled, moved to Texas in 1996 and have been living together since then.  Thirteen years later, she decides to move on and wants to know if she has to go through the formalities of a divorce here in Dallas.

First, Texas does not have "legal separation" like other states do.  The impact of this is that since this individual was never divorced in their home state, then legally she is still married.  Even if she were divorced, and then reconciled in Texas, there is another problem that risen -- informal (common law) marriage.

An informal or common law marriage is a marriage between a man and woman who agree to be married, live together as husband and wife, and hold themselves out to others as husband and wife, but who have not obtained a marriage license and participated in a marriage ceremony.  All three of these elements must exist at the same time for there to be a valid informal marriage.  if a valid informal marriage exists, a formal divorce proceeding is required to dissolve the marriage. Texas does NOT recognize informal divorces. 

Bottom line: this individual is likely still married and a divorce proceeding in Dallas County is required to end the marriage.  Even if the marriage ended in New York, there is the possibility a common law marriage exists which will also necessitate the need for divorce.