Are You Sure You’re Married?
People often appear in my office and tell me that they are “common-law married.” Further conversation usually shows that they are not, in fact, married. There are a number of very common misunderstandings regarding this issue.
Yes, there is such a thing as common-law (or informal) marriage in Texas. But there are three very specific things that you must do for an informal marriage to exists.
First of all, you have to agree to be married. Not get married someday, but that you are married, right now—you just don’t want a ceremony. “Agree” is a key word here—you BOTH have to intend to be married. In other words, you can’t get married by accident. You must both enter into this relationship, as a marriage, on purpose.
Second, AFTER you have made this agreement, you have to live together as spouses in Texas. There are a few things to consider.
“Live together as spouses” means exactly what you think it means. If you have separate bedrooms, it’s tough to show that you were living together as spouses.
“In Texas” is critical. Not all states recognize common-law marriage. If you agreed to be married (see Step 1) and thereafter live together in Arkansas, you may not have a common law marriage in Texas.
There is no time frame for this, no minimum length of time you have to live together. Many people believe that if you live together for six months, you’re automatically married. This is wrong! Remember, you can’t get married by accident!
You present yourselves to others as spouses. There are a lot of ways you can do this: refer to each other as “my husband,” “my wife,” “my spouse.” Use the same last name. Purchase property together and refer to yourselves on the real estate documents as spouses. File Federal Income Taxes as “married filing jointly.” List your partner on your health insurance as your spouse. This is what in legal language is referred to as a “facts and circumstances” test. The point is, people around you need to believe you’re married. If your friends think you’re married but your parents don’t, you may not have established a common law marriage.
These three steps must all be met at the same time. Failure on any one step may defeat any claim to a common law marriage.
BUT WAIT! THERE’S MORE!
The easiest, most fool-proof way to establish a common-law marriage is to go to the County Clerk’s office in the County where you live and file a Declaration of Informal Marriage. This is a sworn statement by both of you that as of a specific date, you declare yourselves to be married. You can even back date it! If it’s your intention to be married but you don’t want all the fuss, the ceremony, the guests, the cake, the car, the hoopla, just go to the county clerk’s office.
Why Does It Matter?
Whether or not you are married does matter. Marital status can effect things like:
Decision-making rights for things like medical care
Property division if the relationship ends
Can Anyone Be Common-Law Married?
Well, no. If you could not legally have a ceremonial marriage (with a marriage license) in Texas, you can’t have an informal marriage. For example, you can’t be married if you are too closely related (first cousin or closer). You can’t marry your step-parent or step-child. You can’t get married if you are underage. You can’t get married if you are still legally married to someone else.
OK, so you’ve established a common-law or informal marriage, but now you want out. Can you just walk away?
Once you’re married, whether formally or informally, you’re married. The only way to become un-married is to go through the courts and get a divorce (or possibly an annulment). There is no such thing as common-law divorce.
If you have questions about whether or not you are married, give us a call! We’d be happy to help.