Common Law Marriage in Texas

 Posted on September 23, 2015 in Divorce

Texas is one of the few states that recognize informal marriages for all purposes, although most jurisdictions do give legal force and effect to common-law marriages from other states. As the name implies, an informal marriage does not require a license or ceremony. However, to dissolve one of these relationships, there must be a legal divorce and perhaps even a complex child custody hearing.

Proving a Common Law Marriage

One or both spouses can file a Declaration of Informal Marriage. As this document does not require the signature of both parties and does not need to be notarized, it cannot prove a common law marriage without supporting evidence during a high net worth divorce. According to Section 2.401 of the Family Code, the three legal elements of an informal marriage are:

• Agreement to be formally married;
• Cohabitation within the state; and
• Holding out.

There is no minimum time requirement; as long as all three elements are present, the couple is married, under Texas law. Furthermore, there is a rebuttable presumption that an informal marriage proceeding is invalid if the couple has been separated for at least two years.

Theoretically, cohabitation could be as little as one or two nights, as long as it can be established by a preponderance of the evidence, which means more likely than not. In a similar vein, it only takes one instance of holding out to prove the third part. Examples of holding out include introducing one another as husband and wife for any reason at all, or signing a legal document, such as a tax return or mortgage application, as husband and wife. A joint checking account is generally not sufficient proof, in the absence of any other evidence. Either spouse may testify as to the agreement. In some cases, the judge may presume that there was an agreement to be married, if the petitioner established the other two parts.

Limitations

Only persons over 18 can be informally married. Furthermore, if one of the common law spouses was married to someone else at the time, the informal marriage is void under Section 2.401(d). The couple cannot be related by blood or marriage, according to Section 2.402(b)(4).

For a consultation regarding high net worth divorce or any other related matter, contact an aggressive Williamson County  divorce lawyer today. Call Powers and Kerr, PLLC at 512-610-6199 today.

Sources:

https://www.dads.state.tx.us/forms/H1057/H1057.pdf

http://www.statutes.legis.state.tx.us/SOTWDocs/FA/htm/FA.2.htm