What Are The Divorce Laws And Common Law Marriage In Texas?


Does The State Of Texas Recognize Common Law Marriage? What Is Common Law?

Yes, they do. There are 13 states that recognize it. Common law really comes from the point, way back in the horse and buggy days, when you didn’t see a JP or a judge or somebody who had the authority to do a marriage because it took you months to get the nearest county.

They had these ways of saying to the world, “We are married.” We’ve had common law in Texas ever since the 1800s when first we were dealing with not just common law marriage, and some people call it informal marriage, but we had the common law. We had things that just developed based on common needs, and so that was surely one of them. There were three steps to common law marriage:

  • You have to be in Texas;
  • You have to hold yourself out as husband and wife, and
  • You have to do it at the same time.

The male and the female would say to others at the same time, “We are married. This is a union we wish to be involved in, and for all purposes we are married.”

Is There A Certain Amount Of Time The Two Have To Be Together To Establish That?

Oddly enough, no. They can simply get together and say, “This is what we’re going to do.” You think about it in the plain days when the trains would stop at the local train depot and the mail-order brides would get off. They were looking at the union rank and they wanted to express themselves to the world, so there is no timeframe. It’s simply those three acts.

There are pieces of evidence that go with it if it becomes contested; how long they were living together is truly one of the most important details if somebody contests a common law marriage. But if they were to write it down, and you can file a declaration with the district clerk in whichever clerk’s office in any other counties that have jurisdiction over family law matters, you can do that. You can simply show up together, notarize, file it, and you’re good to go.

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But here, as long as you hold it out and it’s very clear what you’re doing, you can do that on one day, two days or however long it takes for you to make that decision and that commitment.

If Someone Didn’t Officially File With Any County Clerk And You Have Someone Saying, “No, we weren’t common law,” or “Yes, we were,” Who Is There To Prove That They Were When It Comes To Filing A Divorce?

When you break it down, one party is trying to say, “We are common law married,” and the other party is trying to say, “We’re not.” So, we go through just the list of evidentiary concerns. How long were they together, how long did they live together, did they ever have a ceremony? Maybe not a ceremony presided by a judge or somebody who’d been ordained, but somebody that’s been given authority by the state to perform services.

Did you have or have a service otherwise, a party, a celebration? Did you exchange things that were meaningful, be it a ring, or a gift of some kind? Remember, some people used to trade farm animals to accomplish this. So the question is, how did you present to the world that you were one unit legally?

Lawyers at Bobby Barina’s firm go down through this long list of tests to try to show what the agreement was, who witnessed the agreement, and how was the agreement detailed to others. Then they look at cohabitation, the existence of a ceremony of some kind, and if they have an agreement, who was there.

When you hold yourself out as husband and wife, everybody does it differently. Some people hold hands, some people are affectionate in public, some people kiss, some people will say, “Yes, we are the children’s parents,” and so an attorney will look at all of that and in Texas, a jury can decide that issue of if there was a common law and then if there was, here is the divorce.

It’s an interesting process. There are factors to consider, such as whether things like salary contracts, the purchase of real estate, investments, and other things occurred during the common law marriage. So, attorneys really do have to take a good look at all that.

Does It Require Some Digging And Research?

Yes. Usually, lawyers render the taxes first to say how they filed the taxes, and then they look at loan documents, bank documents, how they had their checking accounts, the survivor benefit’s insurance, and anything else that somebody requires you to include a spouse. And remember, for most health insurance, before the situation of same sex marriage, when you had insurance papers or you had family added to your health insurance, that was only for recognized marriages, not civil unions, so attorneys look at those really close too.

Does Texas Recognize Or Respect Common Law Marriages From Other States In Regard To Divorce And Marital Property?

Not really. If there was a cause of action where another state, be it another judge or jury, had to enter the question where they common law married. For instance, if there was a lawsuit where someone is sued and the judge or jury had to decide if both parties could be liable because they’re married and a trier of fact decided they are married, it would be recognized.

For common law marriage to be established for the first time, those three acts mentioned earlier, in Texas, at the same time, held themselves out to be husband and wife; or as things change, husband and husband, or wife and wife, but it has to be in Texas. Attorneys will also recognize somebody who has already made the determination that the marriage existed and they’re still married.

In Texas, you also have a 2-year statute of limitations, and so your attorney will see if that applies or they try to get divorced after the 2 years and run, but whether that would really apply would be subject to a lot of litigation.

If you need answers to more questions regarding Common Law Marriage and Divorce Laws In Texas, contact the office of Bobby Barina at (254) 699-3755 or toll free at 254-699-3755 for a FREE Initial Consultation.

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