Texas Common Law Marriage
What is Common-Law Marriage?
A common-law marriage is a union between two people who live together and present themselves to the public as a married couple, even though both persons have not performed marriage rites and do not have a marriage license. This arrangement is recognized in a few US states, including Kansas, South Carolina, Colorado, the District of Columbia, Iowa, Montana, and Utah.
A common-law marriage is a preferred alternative for persons who want to enjoy legal benefits and entitlements ascribed to married couples, without the costs and requirements of a conventional wedding. Some benefits accessible by persons in common-law marriages include:
- Social security benefits
- Hospital visitation
- Child custody
- Spousal support
- Property rights
- The right to make emergency medical decisions
- Property inheritance if there is a valid will
- Tax exemptions or deductions
- The right to make medical decisions on spouse's behalf
Although common-law couples enjoy similar benefits to those in traditional marriages, this arrangement has disadvantages. For example:
- Where necessary, common-law married persons who need to claim benefits must prove the marriage's existence. However, common-law marriages are difficult to prove if there was no official declaration by the couple.
- In the event of a divorce, the contesting party must provide proof of the existence
While a common-law marriage is an alternative, states still expect participants to meet a few requirements before receiving official recognition. In many states, interested persons must have the capacity to marry, should be of legal age, and should have lived together for a significant amount of time.
Marriage in Texas
The Texas marriage rate in 2019 was 4.9 marriages per 1,000 residents. In the same year, the state recorded a divorce rate of 2.1 divorces per 1,000 married couples. A survey of the population aged 15 and older shows that 50% of females were married versus 52% of men. The survey also showed that 12% of females were divorced, compared with 9% of men.
Does Texas Recognize Common-Law Marriages?
Texas recognizes and offers common-law marriages. Also called marriage without formalities or informal marriage, Texas allows parties to opt for common-law marriage and recognizes common-law married persons from other states, in compliance with the US Constitution's Full Faith and Credit Clause. Texas also provides paperwork for both parties to sign, making it easy for them to prove that the marriage exists or existed. Interested persons may complete the Declaration and Registration of Informal Marriage form, obtainable from county clerks in the state.
What are the Requirements for a Common-Law Marriage in Texas?
To be legally recognized as common law married, participants must:
- Be at least 18 years old even if they both have permission from their parents
- Not be married to anyone else
- Not be related to each other
- Be mentally capable of entering a marriage
- Agree that they are a married couple
- Present themselves to the public as a married couple
For participants to be in agreement, both parties must be immediately ready to proceed with a marital relationship. This means that an agreement to begin such a relationship in the future would be insufficient.
How Many Years Do You Have to Live Together for Common Law Marriage in Texas?
Texas does not have a durational cohabitation requirement for establishing a common-law marriage. The couple may live together for one day and qualify to be common-law married as long as both parties meet other requirements.
What Does It Mean to Be Legally Free to Marry in Texas?
A person who is legally free to marry in Texas has met all marital requirements stipulated by the state. These requirements ensure that persons entering into any marital relationship fully understand the implications and have the capacity to marry. To be legally free, each person must be at least 18 years old and must not be a relative of their prospective partner. Parties must also be currently unmarried. If there is a previous marriage, paperwork proving divorce or annulment should be available.
What is Intent to Marry in Texas?
Intent to marry in Texas describes a prospective spouse's want of a marriage. Each party must desire the marriage and also agree to be married to the other person. To agree, Texas expects each participant to have an immediate, present, and permanent intent to proceed with a marital relationship.
What is an Informal Marriage in Texas?
A common-law marriage is also called an informal marriage according to Texas law. Therefore, the term may be interchangeably used to describe a marriage without formalities, especially when completed by interested persons within the state of Texas. Although persons legally recognized as common-law married in Texas may enjoy similar rights and benefits in other states, the term may not be legally recognized outside the state.
How Do You Prove Common Law Marriage in Texas?
Common-law married partners may visit the county clerk in their county of residence to request a Declaration and Registration of Informal Marriage form. According to Tex. Fam. Code. 2.402, completing and signing this form validates the common law marriage with the form serving as proof whenever needed.
Although possible, proving a common-law marriage is tricky if the couple did not complete and sign the Declaration and Registration of Informal Marriage form. However, the court may be convinced if either party can prove that the couple's union had the three elements of a Texas common-law marriage. The following must apply simultaneously:
- Both parties agree that they are married
- Both parties live together as husband and wife
- Both parties "hold out" to the public that they are married.
Holding out to other people means that both parties must present themselves to the public as a married couple. By holding out, the couple publicly declares that they are in a marital relationship. Requiring compliance to this rule is the state's way of ensuring that neither party has a secret common-law marriage.
While it may suffice for the participants to present themselves as a couple through speech, other actions help to fulfill the burden of proof. Such actions include:
- Opening a joint bank account
- Introducing the other person as a spouse or using similar terms when publicly referring to each other
- Using the same last name
- Signing applications, such as credit filings, as a married couple
- Filing joint tax returns
- Wearing appropriate rings on ring fingers
Texas does not officially provide an exhaustive list of actions that suffice as holding out. However, the above actions may be used as proof of a common-law marriage on a case-by-case basis. Other factors such as including the other person on a family club membership subscription or the address on a Christmas card may also be considered. Furthermore, the court may consider testimonies from family and friends if their statements agree with the claim that both parties were in a common-law marriage and that the parties presented themselves as a couple.
In Texas, proving a common-law marriage may become more difficult after the couple separates. Under Tex. Fam. Code. 2.401(b), either party to the common-law marriage must commence action to prove the existence of the common-law marriage within two years of the couple's separation. If neither party commences any action within two years from the date the couple separates and no longer lives together, there is a rebuttable presumption that the parties did not enter into an agreement to be married.
How Do You Prove Common-Law Marriage in Texas After Death?
Parties to common-law marriages may submit the Declaration of Informal Marriage as proof of a common-law marriage after a spouse's death. If the participants did not make the declaration before one party's death, the other party may present documents that feature both persons as spouses. These may include joint tax filings, joint bank accounts, documents showing that both spouses used one last name, and other related paperwork. The court may also consider corroboratory statements from friends and relations.
Third-party websites may provide a convenient solution to obtaining marriage-related public records. These non-governmental platforms come with intuitive search tools that help simplify the process of accessing single or multiple records. However, record availability on third-party sites tends to vary because they’re independent of government sources. To obtain public marriage records, requesters may need to provide:
- The full name of both spouses (include first, middle, and last names)
- The date the marriage occurred (month, date, and year)
- The location where the marriage occurred (city and county)
Do Common Law Marriages Require a Divorce?
Texas common law marriages require a divorce. In Texas, a common-law marriage is very similar to a formal marriage and may only be ended with the death of a spouse or through a divorce. Parties must go through the standard divorce process as Texas law does not provide a different divorce method for common-law marriage dissolution. This means that parties will receive certified divorce decrees upon completion of the divorce process. Participants should note that all divorce laws specifying responsibilities and property rights will apply. These include laws on alimony, child custody, child support, and division of marital property.
Does a Common-Law Wife Have Rights in Texas?
Texas law accords legal marital rights and privileges to persons in common-law marriages. All rights enjoyed by a traditionally married spouse are also accessible to common-law married partners. This means that a common-law wife has the same rights available to formally wedded wives.
Can a Common Law Wife Collect Social Security in Texas?
A Texas common-law wife is entitled to all rights of a traditional marriage, including the right to collect social security benefits. An interested applicant must provide proof of a relationship with the other party along with an official request.
Eligible persons must be at least within three months of age 62. Such persons may request online, call (800) 772-1213, TTY (800) 325-0778, or visit a local social security office. While an appointment is not required, prospective visitors are advised to reduce waiting and application time at the office by calling ahead and scheduling.
The applicant should submit a completed Statement of Marital Relationship Form along with a Statement Regarding Marriage completed by a blood relative. Some information required to complete the form include:
- Names of both parties to the common-law marriage
- Month and year the couple began living together
- City or town and state of residence
- Length of time the couple has lived together
- Applicable periods of separation since joint residence
- Names of children born of the relationship, including date and place of birth for each child
- List of close relatives other than children who were aware of the relationship
- List of employers and neighbors who knew of the relationship
In addition to the completed forms, the Social Security Administration (SSA) may require one or more of the following documents:
- Birth certificate or similar proof of birth
- Proof of US citizenship or other document showing legal alien status if born outside the US
- W-2 forms, or self-employment tax returns for the previous year, or both
- Final divorce decree if applicable
- US military discharge documents for service before 1968
Are Common-Law Wives Entitled to Half in Texas?
Although common-law wives have the same rights as traditional wives, Texas law does not automatically give wives half of all property. Texas is a community property state, which means that the state presumes that both spouses own all property possessed by either spouse during the common-law marriage. All other property, especially those acquired prior to the marriage, are regarded as separate property.
According to Sec. 7.001 of the Texas Family Code, the court must divide all community property in a manner deemed just and right, with regard for each party's rights and those of children born of the marriage. To decide what qualifies as equitable, the court may consider the following:
- The cause of the divorce
- Earning disparity between both parties
- The spouse with child custody
- Each person's health concerns
- Each spouse's future employability
How Do You Get a Common-Law Marriage Affidavit in Texas?
Texas law offers the Declaration of Informal Marriage in place of a common-law marriage affidavit. The Declaration of Informal Marriage is not required to enter a common-law marriage but serves as proof of one. To obtain a Declaration of Informal Marriage, the couple must:
- Submit a completed Declaration and Registration of Informal Marriage form in person to the county clerk in their county of residence.
- Provide proof of identity and age, such as a driver's license, state ID, military ID, passport, or certified copy of the birth certificate with photo ID.
- Submit their social security numbers (actual cards are not required)
- Applying for a Declaration of Informal Marriage costs varying fees across counties. For instance, Fort Bend County requires a $37 application fee, while Travis County couples are charged $46.
What is Considered Common Law Marriage in Texas?
Texas common-law marriages are only valid if the parties agree that they are married, live together as spouses, and present themselves to the public as a married couple. Under Texas law, all these requirements must be true at the same time.
In rare cases, persons may unknowingly enter into a common-law marriage. Texas courts sometimes rule that a couple is in a common-law marriage if they live together as spouses and publicly hold themselves out as a married couple, regardless of an oral or written marriage agreement. Courts sometimes assume that public presentation as a married couple is agreement enough.
Does the Federal Government Recognize Texas Common Law Marriages?
The federal government recognizes Texas common-law marriages. As of 2021, nine states and the District of Columbia recognize informal marriages. The states include Texas, Rhode Island, Iowa, Kansas, Colorado, New Hampshire, Montana, Iowa, and South Carolina. Six other states also conditionally recognize common-law marriages. Ohio, Alabama, Georgia, Idaho, Oklahoma, and Pennsylvania all recognize common-law marriages before a given date. However, specifics on requirements and validity may vary between states.
Generally, the federal government recognizes common-law marriages that originate from states that recognize them. Common-law married persons may be entitled to perks such as immigration and federal income tax benefits.