Texas Family Code § 2.401 establishes that in a legal proceeding, a marriage between a man and a woman can be proven by:
- a signed declaration of marriage, or
- evidence that the man and woman agreed to be married, lived together as husband and wife in Texas, and represented to others that they were married.
If a proceeding to prove a marriage under Texas Family Code § 2.401(a)(2) is not started before the second anniversary of the date on which the parties separated and stopped living together, it is presumed that the parties did not agree to be married. This presumption can be rebutted.
A person under 18 years of age cannot:
- be part of an informal marriage, or
- sign a declaration of informal marriage under Texas Family Code § 2.402.
A declaration of informal marriage must be signed on a form prescribed by the Bureau of Vital Statistics and provided by the county clerk. Each party to the declaration must provide the information required in the form.
A declaration form must contain:
- a heading entitled “Declaration and Registration of Informal Marriage, ___________ County, Texas”;
- spaces for each party’s full name, including the woman’s maiden surname, address, date of birth, place of birth, including city, county, and state, and social security number, if any;
- a space for indicating the type of document tendered by each party as proof of age and identity;
- printed boxes for each party to check “true” or “false” in response to the following statement: “The other party is not related to me as:
- an ancestor or descendant, by blood or adoption;
- a brother or sister, of the whole or half blood or by adoption;
- a parent’s brother or sister, of the whole or half blood or by adoption;
- a son or daughter of a brother or sister, of the whole or half blood or by adoption;
- a current or former stepchild or stepparent; or
- a son or daughter of a parent’s brother or sister, of the whole or half blood or by adoption.”;
- a printed declaration and oath reading: “I SOLEMNLY SWEAR (OR AFFIRM) THAT WE, THE UNDERSIGNED, ARE MARRIED TO EACH OTHER BY VIRTUE OF THE FOLLOWING FACTS: ON OR ABOUT (DATE) WE AGREED TO BE MARRIED, AND AFTER THAT DATE WE LIVED TOGETHER AS HUSBAND AND WIFE AND IN THIS STATE WE REPRESENTED TO OTHERS THAT WE WERE MARRIED. SINCE THE DATE OF MARRIAGE TO THE OTHER PARTY I HAVE NOT BEEN MARRIED TO ANY OTHER PERSON. THIS DECLARATION IS TRUE AND THE INFORMATION IN IT WHICH I HAVE GIVEN IS CORRECT.”;
- spaces immediately below the printed declaration and oath for the parties’ signatures; and
- a certificate of the county clerk that the parties made the declaration and oath and the place and date it was made.
A person cannot be part of an informal marriage or sign a declaration of informal marriage if they are already married to someone else. The Law Offices of Richard C. McConathy assist clients all over Tarrant County with common-law or informal marriages.
Common Examples of Evidence of Common Law Marriage
The most common evidence of a common-law marriage includes:
- The behavior of the parties themselves (did they behave like spouses?)
- Wearing rings or other jewelry that symbolizes a marital relationship
- Filing joint tax returns
- Having joint bank accounts
- Applying for credit jointly
- Referring to each other as “spouse” or “Mr. and Mrs.”
- Having witnesses testify that the parties referred to themselves as husband and wife
- Having joint life insurance or naming the other party as a beneficiary on life insurance
- Covering the other party as a spouse on health insurance
- Purchasing property together
Common Law Marriage Court Cases
In Weaver v. State, 855 S.W.2d 116, 120 (Tex.App.-Houston [14th Dist.] 1993, no pet.), the 14th District Court of Appeals of Texas in Houston ruled that to establish a common law marriage, it must be shown that the parties have a present agreement to be married, that they live together as husband and wife, and they represent to others that they are married. The existence of such a marriage is a fact question with the burden of proof on the person seeking to establish the existence of the marriage by a preponderance of the evidence.
In Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex.App.-Houston [1st Dist.] 1991, writ denied), the 1st District Court of Appeals of Texas in Houston ruled that an informal marriage does not exist until the concurrence of all three elements. Alleging common-law marriage is not enough as a proponent of common-law marriage must first prove the parties intended to have a present, immediate, and permanent marital relationship.
In Fuller v. DeFranco, No. 05-19-01203-CV (Tex. App. Nov. 18, 2020), John Scott DeFranco sought a declaratory judgment that there was no marriage between himself and Rhonda Jean Fuller. She filed a counter-petition for divorce alleging the parties had an informal marriage that began approximately on August 1, 2014.
Following a three-day bench trial, the trial court entered a final order declaring DeFranco and Fuller were never married to one another and also entered findings of fact and conclusions of law. In a single issue, Fuller argued the evidence was factually insufficient to support the trial court’s finding that the parties were not married to each other.
The Fifth District Court of Appeals of Texas in Dallas affirmed the trial court’s final order.
Number of Years of Living Together for Common Law Marriages to be Valid
In Texas, there is no required cohabitation period for a common-law marriage. As long as both parties agree to the three elements listed in Section 2.401, they meet the requirements of a common-law marriage. Contrary to popular belief, you do not need to live together for seven years for a common-law marriage to be valid.
Common Law Marriage Rights in Texas
Texas treats common law marriages the same as formal marriages, meaning that informally married couples have the same property and inheritance rights as other legally married couples.
Under Texas law, all income, property, and debt acquired during a common law marriage are considered community property. Similarly, informally married couples inherit from each other just like formally married couples would if one of them dies without a will.
Texas Common Law Marriage Divorce
Some people believe that, because they did not need to take any formal steps to get into a common-law marriage, they do not need to take any legal steps to end it. This is not true. To end a common law marriage, you must file for divorce. There is no such thing as “common law divorce.”
Texas law requires you to start the divorce process within two years of your separation. Divorcing a common-law spouse is unusual because the person who wants the divorce must first prove that a marriage existed. If you live apart for more than two years without doing this, the law assumes that you never got into a common-law marriage in the first place.
When a couple breaks up and one party seeks to take advantage of Texas’s community property laws, whether or not they are considered common law married becomes pivotal. Community property laws dictate that assets acquired during the marriage are generally divided equally between spouses in the event of divorce or separation.
The Texas family courts consider common law marriage disputes on a case-by-case basis. A Declaration of Informal Marriage is not required. If one party can prove that the couple met all three conditions required for common law marriage in Texas, then community property will need to be considered.
Couples take many actions that make the state believe that they are married. The court will weigh all of the evidence. For example, if you filed taxes as a married couple, applied for loans as a married couple, wore rings on your ring fingers in public, and held yourselves out as a married couple in other ways, the court could declare the informal marriage as valid.
However, timing is important. You must file a common law marriage claim less than two years after separating from the other party. Otherwise, the court will assume that no legal marriage exists.
If you find yourself in a legal dispute over a common law marriage, it is best to seek legal advice from a family law attorney familiar with the intricacies of Texas common law marriage as soon as possible. Even if less than two years have passed, details and memories of potential witnesses can become hazy. For example, to establish common law marriage in Texas, a couple must have represented themselves to others as being married, which is often confirmed (or not confirmed) by witnesses who knew and spent time with the couple. As time goes by, memories fade.
Disproving Common Law Marriages in Texas
If you move in with your partner and want to make sure that your relationship is not considered a common-law marriage, put your feelings in writing. There are no formal requirements for this document, but it is a good idea to consult with a lawyer to ensure that your status is clear. Otherwise, simply state in writing that you intend to live together as single individuals and keep your assets separate. Then sign and date the document and keep it in a safe place.
If you did not take this step, one party may find themselves trying to prove in a divorce, probate, or other court proceeding that a common law marriage did not exist. To do so, this individual must show that one of the three elements of a valid marriage is missing. No single fact will likely be conclusive. Instead, the court will look at the weight of the evidence.
For example, if the couple referred to each other as boyfriend and girlfriend instead of husband and wife and did not share income or expenses, it would appear that they did not agree to be married or to represent themselves as married. The person trying to disprove the common law marriage could also show that the couple did not meet all three elements at the same time.
Having Common Law Marriages Recognized in Other States
If you have a valid common-law marriage in Texas, other states will recognize you as married. However, you cannot create a Texas common-law marriage by living together in another state. You must live together in Texas at the same time that you agree to be married and represent yourselves as such.
Most other states do not recognize common-law marriage. So, for example, if you satisfy all three elements of a common law marriage while living in California or Mississippi, you will not be legally married. For this reason, if you have a Texas common-law marriage and plan to move to another state, it would be wise to file a Declaration of Informal Marriage to clarify your status.
Alimony in Common Law Divorces
Disputes over the legal marriage date can play a role in Texas divorces and community property involving both common law and same-sex marriages. The same is true for alimony, or spousal maintenance, as it is known in Texas.
In general, to receive spousal support in Texas, a party must prove that they are unable to provide for their minimum reasonable needs and meet certain conditions. One of those conditions is that the marriage must have lasted 10 years or more.
This requirement can be waived if the paying spouse was convicted of or received deferred adjudication for an act of family violence during the quick divorce process or within two years of the divorce filing. When determining the amount of spousal maintenance, courts consider several factors, including the length of the marriage, the financial positions of both spouses, their age and health, the standard of living during the marriage, the earning capacity of each spouse, and the contributions made by each partner to the marriage.
It is important to understand these factors to grasp the nuances of alimony in common-law marriages:
- Length of the marriage: Generally, longer marriages may result in higher potential awards of spousal maintenance.
- Financial positions of both spouses: The court considers the income, assets, and debts of both spouses. A significant disparity in income or financial resources may lead to higher spousal maintenance awards.
- Age and health of the spouses: The age and health of each spouse can influence the amount of spousal maintenance. Health issues or advanced age may result in a greater need for financial support.
- Standard of living during the marriage: The court aims to provide a level of spousal maintenance that allows the recipient spouse to maintain a similar standard of living as they enjoyed during the marriage.
- Earning capacity of each spouse: The court considers the earning potential of each spouse. If one spouse has significantly higher earning capacity, it may affect the amount of spousal maintenance awarded.
- Contributions made by each spouse: The court considers both financial and non-financial contributions to the marriage. Non-financial contributions, such as homemaking or supporting the other spouse’s career, may be recognized in spousal maintenance awards.
If you are expecting a large alimony payment in Texas, you should be prepared for disappointment. The state caps alimony at $5,000 per month or 20 percent of the paying spouse’s average monthly gross income, whichever is less. The amount of time you may receive spousal support in Texas is also limited based on the years of marriage and other factors. Your divorce attorney can explain the options available to you.
Common-Law Marriage (Informal Marriage) Attorney in Tarrant County, TX
If you or someone you know is in a situation where a relationship has ended and there was no formal marriage, it is very important to seek legal advice, even just to understand the potential legal consequences. This is especially important before the relationship ends, as certain steps may need to be taken to protect yourself.
If you or someone you know has questions about common law or informal marriage in Fort Worth, Arlington, Grapevine, Keller, or Southlake, contact our Tarrant County Common Law Divorce Attorneys at The Law Offices of Richard C. McConathy today. We offer free consultations. We are compassionate, experienced, and aggressive when your case requires it. Put the experience of the Tarrant County common law divorce attorneys at The Law Offices of Richard C. McConathy to work for you.