Friday, September 1, 2017

Do You Have a Common Law Marriage?

I am writing this to be Texas-centric. I recently read an article in a national publication which confidently stated that there is no common law marriage.  That's probably true in about 42 other states, but not so in Texas.

Common law marriage is an old concept that has withstood many attacks over the years.  It has changed is some ways, but it is still in effect and it can lead to problems or benefits, depending on your point of view.

1.  Is there common law marriage in Texas?  Yes.  It's even spelled out in the Texas Family Code, the statute that governs family law issues in Texas.

2.  How does someone become common law married?  There are three requirements which all have to be met.
  • A couple must live together as spouses.
  • They must have an agreement that they are married.
  • They must hold out, or represent, to others that they are married.   
All three events must be present for there to be a common law marriage.

3.  Things that alone don't automatically create a common law marriage:
  • A couple living together.  The most common mistaken belief about common law marriage is that if a couple lives together for "a certain period of time" (the length varies from story to story), they are common law married.  Not True. You need all three requirements.
  • Giving the partner a ring.  It's not one of the three requirements.  It could be some evidence of the agreement, but it's not conclusive.
  • Having kids together.  It's not one of the three requirements. It happens all the time outside of marriage.  It could create some sympathy, but it doesn't do much for a case.
  • Having joint bank accounts. It's not one of the three requirements. 
  • Sharing expenses. It's not one of the three requirements. 
  • Buying a house together. It's not one of the three requirements. Engaged and non-engaged couples buy houses frequently.  It doesn't do much for the case, unless the paperwork mentions that the couple is married.
  • Photos showing the couple together at various events. It's not one of the three requirements. 
  • An agreement that the parties will get married in the future. The agreement must be that they are now married, not in the future.  Also, both people must agree that they are married, not just one of them.
 4.  Facts that can support a finding of a common law marriage:
  • Filing joint tax returns.
  • Buying real estate or other major purchases where the paperwork refers to the couple as married.
  • Any signed affidavits stating the couple is married.
  • Statements to third parties about the couple being married.
  • Job applications and other important documents where the marital status is designated as married.
  • Insurance records showing a marital status of married.
  • Retirement asset paperwork referring to a spouse or indicating a marital status of married.
There are a lot of misconceptions about common law marriage.  If you think you may have a common law marriage, you should meet with a lawyer to find out if you have a case.  A trial about common law marriage can be complicated and difficult.  You definitely will need a lawyer to help if you get into litigation about common law marriage.

Bonus Information:  If you have a common law marriage, you can use Collaborative Law to do a divorce.