Family Law Articles

Common Law Marriage in Texas

Informal Marriage

In today's modern world, unmarried couples living together is commonplace, far from the taboo it was at one time.  Many in such relationship have heard of common-law marriages and sooner or later they may worry that they may, in fact, be legally married under Texas law, especially when the relationship ends.  

Myths or simply misconceptions about common law marriage have caused many unnecessary anxiety, but it is important to know what not to do to avoid an unwanted common law marriage.   The most common misconception is the concern that if you live with your partner, Texas considers you married.  While cohabitation is one element of a common law marriage, that alone would not qualify as a common law marriage.  

Requirements of an Common Law Marriage in Texas

Absent a valid declaration of marriage, to prove a common-law marriage was created in Texas, the party alleging the existence of a common law marriage must show that the couple

(1) agreed to be presently married, (as opposed to an agreement to get married in the future)
(2) lived together in Texas after the agreement, and 
(3) represented to others that they were married while still living together (holding themselves out as married),  

Standard and Burden of Proof 

The party alleging the existence of a common law marriage has the burden to show each requirement by a preponderance of the evidence. If the action is brought more than two years after the couple separated and stopped living together, it is rebuttably presumed that the parties did not agree to be married.

Consequences of a Common Law Marriage

Once established, common law marriages created in Texas have the same validity as a ceremonial marriage.    Thus, the marriage will be recognized by all other states pursuant to the constitution's full faith and credit clause.

Ending a Common Law Marriage

Much to the dismay of some, common law divorce does not exist.  Once the common-law marriage is established, it can only be dissolved as any other marriage could, by the death of either party, or by petitioning the court for an annulment or divorce.

Same Sex Common Law Marriages in Texas

The Texas statute for common law marriages refers only to marriages between a man and a woman.  However given the recent U.S. Supreme Court decisions effectively legalizing same sex marriage throughout the nation, Texas courts have begun recognizing common law marriages between same sex couples in Texas. 

Although the Texas Family Code refers to it as "informal marriage", such informal marriages are regularly referred to as common-law marriages by most non-lawyers.  This article uses "common-law marriage" to avoid confusion of the reader.   

Divorce Process in Texas

     Most divorce cases are settled…eventually.  However, many cases run through at least the initial phases of litigation prior to the parties resolving their issues.   No case is identical, but most cases tend to follow the same general path.  This article hopes to increase your understanding of what to expect during your divorce case, albeit in the most general terms.  Nonlegal teminology, rather than legaleze used in Texas courts  (e.g., Custody vs. Conservatorship) has been adopted for the reader's convenience.  

Issues In Divorce Cases 

   The purpose of a divorce action is, of course, to terminate the marriage, but this is not usually a issue of contention as most states including Texas have one form of no fault divorce or another.  Simply alleging that the marriage is not salvagable is usually enough to terminate the marriage.   The issues in dispute typically include  1) how to fairly divide the assets and debts of the divorcing parties, 2) each parent's rights with respect to any minor children (child custody and other parenting issues), 3) the amount of child support, if any, that the court should order a parent to pay the other for support of minor children, and 4) the amount, if any, should a party pay to support to the other for a time after the marriage (i.e., spousal support, commonly referred to as alimony).  

Initial Meeting With Attorney

     First, you meet with your attorney where you will discuss your particular circumstances and what you hope to accomplish.   The attorney will have questions for you and ask that you provide certain documentation (e.g. bank statements, tax returns etc.).  If you have not already, the attorney will probably ask you to complete a questionnaire to make certain all pertinent issues are covered.  The attorney will discuss with you the likelihood that your goals can be achieved and the approach(s) the attorney could take to achieve those goals including any risks associated with those approach(es).   

Filing for Divorce and Temporary Orders

    After you have spoken with your attorney and decided to proceed, the actual case starts with one of the spouses filing a petition in a district court. and then serving the other spouse with the court papers.   Although not required, at the time of filing, the filing spouse can also ask the Court to issue temporary orders which are, at a minimum, designed to maintain peace and civility between the parties and minor children.  Often local court rules will automatically make temporary orders for this purpose.  In addition, the filing party can ask the court for temporary orders relating to child custody, child support, spousal support (alimony), and temporary possession of property among other things.  The orders will also prevent the parties from wasting or hiding of assets during the case.    The filing party will likely need to complete a financial affidavit and worksheets before the judge would consider temporary orders of support. 

Amending Temporary Orders

    If these temporary orders are sought at the time of filing, they are considered without the other spouse's input, or ex parte in legal jargon.  Since the filing spouse is unlikely to act in the interest of the other spouse, it is often an advantage to file before the other spouse does.   Fortunately for the other spouse, the non-filing spouse has the right to seek to vacate or amend the ex parte temporary orders.  Still, that spouse generally would have the burden to show the court why the temporary orders should be changed.   At later points in the case, either party can ask the Court to amend those temporary orders during the case as circumstances change.

Court Ordered Mediation and Parenting Classes

   Courts prefer the parties to reach an agreement as to all matters, but especially those issues pertaining to children.   So, after the initial hearing, if not before, the parents will typically be ordered to attend mediation or some other type of alternative dispute resolution process in order to encourage agreements on issues.  If the parties have minor children of the marriage, many courts will order that the parties attend a parenting class as well.

Negotiations, Discovery, and Preparing for Trial

   Throughout this period, your attorney is continuing negotiations with your spouse and his or her representative while simultaneously preparing for trial should the negotiations fail.  Because conducting discovery and preparing for trial results in significant legal fees, not to mention aggravation for the parties, both parties have a great incentive to make a good faith effort to resolve all issues prior to trial.  Because of this and the uncertainty of what the judge may order, most do reach an agreement prior to trial.  However, if the other party won't budge, going to trial may be the only way to get a fair result.