Texas Common Law Marriage FAQs

Texas Common Law Marriage FAQs

Nov 13, 2023
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Common law marriage can be a confusing concept, especially since each state has different laws on the matter, and most states have abolished the principle altogether. Texas, however, still recognizes common law marriage, and the law sets out specific requirements for couples. 

Below are some of the most commonly asked questions we get about common-law marriage in Texas. If you need to end a common law marriage or have other questions, seek a consultation with our Fort Worth family lawyers. 

What Is a Common Law Marriage? 

A common law marriage is one in which a couple never got legally married, but they live like a married couple, including telling others they are married. The couple must be over 18, not legally married to anyone else, living together, and not related by blood. A cohabitating couple could live together for just a week before agreeing to be spouses or for 50 years—there is no time limit, so to speak.

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How Long Can a Couple Cohabitate Before Being Considered “Common Law Married”? 

This is a misconception. Today, three-quarters of couples live together – or cohabitate – before heading to the altar. Long ago, some referred to cohabitating as “living in sin.” An unmarried couple can live together for decades and have a dozen kids together without having to worry about becoming married “on accident.” 

If We Cohabitate and Get Engaged, Are We Common Law Married?

No, if a couple in Texas is engaged to be married, whether they live together or not, this does not make them common law married.

Can Same-Sex Couples Get “Common Law Married”? 

Yes, Texas recognizes same-sex marriages of all kinds, including common law. Via the Relation Back Doctrine, our state will even acknowledge all same-sex marriages that originate outside Texas. 

If My Girlfriend Starts Using My Last Name, Are We Common Law Married?

No, if a cohabitating girlfriend starts using her boyfriend’s last name, whether she has his permission to or not, this does not mean they are common law married. Likewise, if an unmarried mother gives her child the cohabitating father’s last name, this also does not establish a common law marriage. 

How Is a Common Law Marriage Validated?

A judge would look at things like joint accounts and statements from the couple’s family confirming that they represent themselves as married. A cohabitating couple can also file paperwork with the county verifying their common-law marriage. This form is not mandatory for a common-law marriage to be valid.

What Are the Legal Requirements for a Texas Common Law Marriage? 

The state validates common law marriages on a case-by-case basis. Texas has three requirements for a common-law marriage to be valid. At the same time, a couple must live together, present themselves as a married couple to the world, and have clearly consented to one another that they are married. The couple doesn’t need to have a marriage license, children, or any sort of written documentation. 

My Boyfriend Tells Everyone We’re Married, But I Never Agreed to That. Are We Common Law Married Now?

For a common law marriage to be valid, both cohabitants must clearly and openly consent to it. As long as you don’t give into the illusion by nodding when your boyfriend introduces you to people as his wife, you’re not his wife. However, if you give into the charade, calling his mom your mother-in-law and registering at hotels as “Mr. and Mrs.” then proving that you do not consent to being his wife will be next to impossible.

Why Is the Common Law Marriage Date So Important?

For common law spouses, the date of marriage is considered the first date on which they simultaneously met all three requirements listed above. To get divorce benefits, it is required to validate a common law marriage and determine a marriage date. The marriage date is crucial. In order to get alimony, better Social Security benefits, and Uniformed Services Former Spouse Protection Act benefits, a Texas common law marriage must endure for ten years. This ten-year requirement can be waived if there is domestic violence.  

Do I Need a “Declaration of Informal Marriage”? 

If a common law couple finds it beneficial to have an officially documented marriage, they simply need to fill out and file a Declaration of Informal Marriage form. These no-cost forms are available at the county clerk’s office. After a Declaration of Informal Marriage has been recorded, a traditional marriage license can be issued if the couple so desires. 

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We put you and your family first! Whether you are facing divorce, seeking adoption, or have a child custody case, you can rely on our legal team. Contact us today for a case review or legal consultation.

Is There Such a Thing as Common Law Divorce in Texas? 

No, when a common law couple breaks up, their bond does not officially need to be terminated if they never filed a Declaration of Informal Marriage. However, if one spouse is seeking benefits from the other that are being contested, then it becomes necessary to validate the marriage, prove a marriage date, and file for divorce. A QDRO (Qualified Domestic Relations Order), the document required to split a retirement account tax-free, can be established in a “cohabitation agreement”—no divorce needed. Couples can also try mediation if reaching an agreement is proving difficult.

Can a Common Law Couple Get Legally Separated?

Texas is one of just six states that does not have a legal separation option. Therefore, whether a couple was legally married or common law married, informal separations are the only kind available. Separation agreements, temporary orders, protective orders, and Suits Affecting the Parent-Child Relationship (SAPCR) can all be used to essentially accomplish the same things as getting legally separated would. 

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How Long After Separating Does a Common Law Couple Have to Start the Divorce Process?

There is some legal precedent that if a common law divorce isn’t initiated within 24 months of the date of separation, they lose the option of filing for a traditional divorce. 

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Constance Mims

Constance Mims has over fifteen years of experience practicing exclusively family law. Mrs. Mims is Board Certified in Family Law, by the Texas Board of Legal Specialization. She is Collaborative Law certified and is a shrewd negotiator, not to mention her experience in the most challenging child custody, child support, spousal maintenance, alimony, prenuptial agreements, and divorce issues, both in court and in the appellate arena.

Ask a Fort Worth Family Law Attorney!   

The Fort Worth family law attorneys at Mims Ballew Hollingsworth are eager to answer all of your common law marriage and divorce questions. To schedule a no-cost legal consultation, use our contact form. We look forward to hearing from you.

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This page has been written, edited, and reviewed by a team of legal writers following our comprehensive editorial guidelines. This page was approved by Founding Partner, Constance Mims who has over 15 years of experience practicing exclusively family law. Mrs. Mims is Board Certified in Family Law, by the Texas Board of Legal Specialization..

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