You May Be Common Law Married

If you and your partner have lived together for a while, you may be common law married. Common law marriage is legally recognized in Texas even though the spouses didn’t obtain a marriage license or have a wedding ceremony.

If you and your partner meet each of the following four requirements, you are common law married:

  • You are both available to marry (i.e., at least 18 years old, not related, and not currently married to someone else);
  • You agree to be married;
  • You have “held yourselves out” to other people as spouses—meaning, you and your partner have represented to other people that you are married, or you behaved in a way that caused others to believe you are married; and
  • You and your partner are living together in the State of Texas.

These four requirements must be met for a common law marriage to exist—even if you and your partner live together and have a child together. But an on again/off again romance (without more) does not meet it. Nor will a judge find a common law marriage to exist if you have lived with a non-romantic partner for several years.

“Holding yourselves out” is the key requirement. It may be met in a variety of ways, including jointly signing leases and other financial agreements as spouses, publicly introducing each other as spouses to other people (one time is enough), listing each other as spousal beneficiaries or insureds on insurance policies, maintaining joint financial accounts as spouses, or filing joint income tax returns. There is no magic time frame for how long you must “hold yourselves out” to be common law married.   

If you are common law married, you have the same legal rights and responsibilities as couples who obtain a marriage license and have a wedding ceremony. You also have the same legal protections and obligations regarding divorce, such as child support, sharing any property acquired during the marriage, and the responsibility to pay joint debts.

If you want to make your common law marriage “official,” you and your spouse must file a joint declaration (sworn statement) in the county clerk’s office, stating that both spouses acknowledge and agree that they are common law married. The declaration form is available at the courthouse.  

On the other hand, if you’re concerned about protecting your assets, you may want to enter into a cohabitation agreement from the get go. A cohabitation agreement, which is signed by both parties, may include a statement that you are not common law married and provide a financial settlement for the non-monied partner should you later decide to go your separate ways.

But if you want to end your common law marriage, you will have to go through a formal divorce proceeding. There is no such thing as common law divorce. Nor may you and your partner simply agree to divorce. And, since Texas is a community property state, any assets and debts accumulated during the marriage will be subject to division.

Whether you were married the old-fashioned way, or you are common law married, if you need legal advice, Sonya B. Coffman, a Southeast Texas Board Certified divorce lawyer, is your best strategic choice. Her mission is to aggressively protect and secure all that is important to you.