Common Law Marriage in Texas

Common law marriage, or informal marriage, is a situation in which a couple that meets certain legal requirements qualifies as being legally married, even if they do not have a marriage license and have not had a marriage ceremony. Common law marriage in Texas has important implications for couples in the state. Our comprehensive guide explains everything you need to know.

What is common law marriage?

Common law marriage occurs when a couple who have not obtained a marriage license and had a ceremonial marriage performed are considered formally married under state law. In the U.S., only seven states and the District of Columbia recognize common law marriage. The legal requirements are slightly different in each state.

How common law marriage works in Texas

Under Texas state law, a common law marriage is established only if certain conditions are met. If you meet the requirements, your marriage qualifies as a legal and formal marriage, giving you the legal rights of a married couple.  

Requirements for common law marriage

To be eligible for a common law marriage in Texas, you must meet the specific legal requirements for traditional marriage in Texas, including:

• Age: Both spouses are 18 years of age or older at the time of the marriage.
• Unmarried: Neither spouse is married to anyone else at the time of the marriage.
• No blood relationship: The spouses are not related by blood and are not biological relatives.

To meet the qualifications for a marriage to be considered a common law marriage, the following three elements must be met. You must meet all the requirements:

• Consent: Both spouses agreed to be married to each other.
• Cohabitation: After agreeing to be married to each other, they lived together as spouses in the state.
• Representation: The couple represented to other people that they are married (sometimes called “holding themselves out as married”).

You can register your common law marriage with the state of Texas by filing a declaration with the county clerk, but it is not required.

The Texas statute refers to “husband and wife,” which seems like it might exclude same sex couples, but the common law marriage rules also apply to same sex marriage couples. The U.S. Supreme Court legalized same sex marriage, so same sex couples follow the same process for common law marriage as other couples.

In some states, your relationship must last a certain period of years to establish common law status. In Texas, there is no minimum time requirement.

Rights of common law married couples

Parties who enter into a common law marriage in Texas have the same rights as a couple that marries the traditional way, including the following:

• Shared property: Texas is a community property state, which means that all joint purchases, assets, and marital property acquired during the marriage (with some exceptions for gifts, personal injury settlements, and inheritances) are considered community property and are owned equally by both spouses. If the couple divorces, the assets are divided equally between them in the property division. The same is true for debts accumulated during marriage.
• Estate planning: Because Texas is a community property state, each partner can use a will to distribute their half of the community property as well as any separate property. The other half of the community property automatically belongs to the surviving spouse. For inheritance rights, if a person dies without a will, the surviving other spouse gets all of the community property and a life estate interest in separate property if the common law union is proven.
• Alimony: Alimony or spousal support is available in a Texas common law dissolution if there is a postnuptial agreement that requires it or if one spouse cannot meet their reasonable needs without spousal support.
• Parental rights: Texas statutes presume that if the parties share minor children and end their relationship, they will become “joint managing conservators.” This is the same as having legal joint custody, making decisions together, and sharing time with the child. Children born into a common law relationship are considered legitimate. Child support can also be established for a common law marriage.
• Health care: Common law spouses may be able to obtain health insurance through each other if the employer recognizes common law unions. A Declaration of Informal Marriage may be required to prove a marital relationship. In Texas, a spouse is considered next of kin for making medical decisions for a spouse who cannot make their own decisions. It is up to the medical provider whether they require proof of informal marriage or common law marriage.  
• Social Security: Common law spouses have the same rights to Social Security as traditionally wedded couples, such as receiving benefits through their partner. However, the Social Security Administration may require you to complete form SSA-754 Statement of Marital Relationship.  
• Retirement: A common law wife or husband can be named as a legal beneficiary for retirement benefits and is entitled to half of the amount accumulated in the account during marriage if the couple divorces.
• Divorce: A common law couple can file to end their union in Texas and have the court decide all the issues.  
• Prenuptial and postnuptial agreements: These agreements establish how assets are distributed in a divorce. A prenuptial agreement does not apply to a common law marriage in Texas because it becomes valid when there is a marriage license. There is no license in a common law marriage. A postnuptial agreement can be created once a couple has entered into a common law union.

Dissolving a common law marriage in Texas

There is no separate legal process for common law divorce under Texas law. If you are in a common law union in Texas and want to end your marriage, you have two options:

1. Two year separation: If you and your partner physically separate in Texas but do nothing else to end the marriage, after two years from the separation date, Texas state law automatically assumes there never was a common law marriage unless proven otherwise. So, for legal purposes, your marriage dissolves two years after separation.

2. File for divorce: You can file for common law divorce just as a traditionally married couple would by following Texas family law:

• Meet residency requirements: One married party must be a Texas resident for at least six months and a resident of the county the papers are being filed in for at least 90 days prior to filing divorce papers.
• File a divorce petition: File a petition in the Texas county where residency has been established and pay the filing fee.
• Serve divorce papers: Have your common law spouse served with the papers in person or by certified mail.
• Negotiate terms: The married parties negotiate the terms of the divorce so it can continue as an uncontested divorce.
• Appear in court: If the case is uncontested, you must appear in court to finalize it. If you and your married partner cannot agree, your case goes to trial, and the court will decide.

How do you prove a common law marriage in Texas?

There are several ways to prove common law marriages exist.

• Declaration of informal marriage: This informal marriage form is the simplest way to prove a common law marriage in Texas. You and your spouse go to your county clerk and complete a form, which is filed.
• Witness statements: You can gather statements from witnesses who can attest and prove you lived together as spouses and were married.
• Joint financial documents: Documents showing joint bank accounts or joint utility accounts can provide evidence of common law marriages.
• Proof of cohabitation: A lease, deed, or mortgage with both names is another way to prove an informal marriage.

FAQs

Can same sex marriage couples get a common law marriage in Texas?

Yes, same sex marriage has legal recognition, and any couple can have a common law marriage under Texas law, so same sex couples can have a common law marriage that is a legal marriage. Same sex couples use the same process for informal marriage under Texas family law.

Can you get a prenup for a common law marriage?

No, a prenuptial agreement becomes valid once there is a valid marriage license filed. There is no license if you are common law married. You can, however, create a postnuptial agreement during your common law marriage. You can also create cohabitation agreements.

How is child custody handled in a common law marriage?

Child custody is handled the same as in a traditional formal legal marriage under Texas law. There is a presumption that both parents are joint managing conservators, sharing in decision-making and time with children.

Is filing joint tax returns as a married couple legal if you are in a common law marriage?

Yes, if you are common law married you can file joint tax returns. This is evidence proving the common law marriage exists.

What are the disadvantages of having a common law marriage as opposed to a traditional formal marriage?

The biggest disadvantage is you cannot simply show a marriage certificate to prove a common law marriage existed. If you do not file a Declaration of Informal Marriage, you have to gather proof to show you considered yourselves spouses and lived together as if you were married.