WHAT DOES TEXAS CONSIDER A  ‘COMMON LAW’ MARRIAGE?

If you’ve lived with your partner for quite some time and decide to separate, are you considered common law married in Texas? Must you go through the divorce process? As Texas is considered a community property state, many individual enter into a common law marriage as an alternative to going through the process of applying for and receiving a marriage license. They believe that by not going through the legal marriage process that they are immune to the legal requirement to split certain assets. The State of Texas affords certain rights to individuals in a common law marriage.

Determining If You’re in a Common Law Marriage

Fam § 2.401 states the legal requirements of a Texas common law marriage:

  1. A declaration of marriage signed by the parties; or
  2. The couple agrees to be married and they live together while presenting themselves to others as a married couple.

The traditional standards of marriage also apply to common law marriage in Texas. For example, an individual who is under the age of 18 may not be considered common law married. An individual who is presently married to another person who is not a party to the common marriage also may enter into a common law marriage.

Divorce and Common Law Marriage

Individuals who meet the elements of being a party to a common law marriage have the same rights and responsibilities as individuals who enter into a traditional marriage. The difference between a common law divorce and a traditional divorce is that the common law marriage must first be proven to exist. Individuals in a common law marriage may file for a divorce for the same ground(s) as a traditionally married couple.

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