Common Traps of Common Law Marriage and How to Avoid Them
Many people dream of a beautiful, grand wedding complete with family, friends, flowers, and fanfare. For those that don’t want the pomp, circumstance, and cost of a formal wedding, or don’t subscribe to the structure of a ceremonial marriage, but still want to enjoy many of the benefits, there is common law marriage. However, the same freedom from laws and structure that draws Texans to common law marriage is often at the root of its pitfalls.
Is Common Law Marriage Legal in Texas?
Texas is one of a few remaining states that recognize common law marriage. According to the Texas State Law Library, “Common law marriage, also known as marriage without formalities or informal marriage, is a valid and legal way for a couple to marry in Texas. Texas law states that a common law marriage may be proved by the following evidence:
- The couple “agreed to be married” and…
- “After the agreement they lived together in this state as husband and wife, husband and husband, or wife and wife” and…
- They “represented to others that they were married.”
With the legality and requirements addressed, you now know that you can do it and how to make it official. Now let’s look at some of the common traps of entering into common law marriage in Texas.
Trap #1: Living together doesn’t automatically create a common law marriage
Despite widespread belief, living together for a certain amount of time does not automatically create a common law marriage in Texas. So, whether you live together for a day or a decade, your common law marriage is only proven by adhering to the three requirements above- which must exist simultaneously Also, the parties must be over 18, unrelated and not currently married to someone else.
Trap #2: Failing to end a common law marriage properly can lead to legal complications
As clarified by the Texas State Bar, “Once a common-law marriage is established, it is treated just the same as if it were a ceremonial marriage. Thus, there is no “common-law divorce.” A common-law marriage must be terminated with either a standard divorce suit (or annulment) or by the death of one of the parties. A common-law marriage does not magically dissipate if the parties physically separate.”
Therefore, if you don’t end your common law marriage appropriately, you are still considered to be married in Texas, and subject to the same rules and requirements as all married couples. However, if divorce proceedings are not filed within two years after the date of separation, Texas law presumes that a common law marriage never existed unless proven otherwise.
Trap #3: Assuming that common law marriage is the same as traditional marriage
While you’re love for one another may be equal to that of traditionally married couples, common law marriages are very different in the eyes of the courts—and some other agencies or entities. Some key differences between common law marriages and traditional marriages include the following:
Not all states recognize common law marriages: Only a handful of other states recognize common law marriage, so if you move to one of them, your union may no longer be binding. To prove that the parties agreed to be married, there must be proof of a present agreement to be married and as such, a promise to be engaged or to get married in the future will not establish an agreement of marriage. Rather, the parties would be found to be engaged, not married.
Division of property and spousal maintenance are more problematic when divorcing from a common law marriage: In a traditional marriage, the Texas courts try to divide property fairly based on the marriage’s official start date which helps the court to determine things like length of union, what a person owned prior to the date of marriage, and when they may have given up their career to become a housewife or househusband.. If there is a dispute as to the date that the three common law marriage requirements existed, then even the start date of the marriage can be a subject of contention if recollections vary. In fact, it’s not unheard of for a court to be unable to confirm that a common law marriage ever existed, resulting in no division of property or awarding of spousal maintenance.
Inheritance can be more difficult to acquire after death: When you or your spouse die, it can be challenging to obtain spousal inheritance due to no legal documentation of a marriage ever taking place.
3 Tips for Avoiding Common Law Marriage Traps in Texas
With most traps, there are ways to wriggle out, or avoid them altogether. The following suggestions can help you avoid, or at least minimize, the impact of falling into the common law marriage traps we’ve just discussed.
1. Be completely aware of the requirements of a common law marriage. Ensure you have a thorough understanding of the three requirements to prove a common law marriage in Texas. As a reminder:
- You and your spouse “agreed to be married” and…
- “After the agreement, you and your spouse lived together in this state as husband and wife, husband and husband, or wife and wife” and…
- You and your spouse “represented to others that you were married.”
2. Get evidence of an official start date. Many of the difficulties with common law marriages center on the inability to prove an official start date. Therefore, if you and your spouse have decided that common law marriage is the way to go, get video evidence of the two of you entering into it with proof of date. Adding one or two witnesses on camera can help to make your evidence even more compelling. A video may not be as solid as a marriage license, but it’s better than nothing.
3. Keep track of the time spent living together. While time spent living together may not serve as proof of a common law marriage, it can help you in the case of a divorce where length of cohabitation or the purchase date of a home comes into play. A few items than can help track and prove the amount of time you and your spouse live together include:
- Mortgage closing statements or lease agreements with both people’s names
- Home or renter’s insurance statements
- Utility bills
While common law marriage does come with its share of traps, it can be preferential to the ceremonial alternative for a number of people. Understanding these traps and how to safeguard yourself from them is vital. For more information on proving or terminating a common law marriage in Texas, contact Carrington Smyth PLLC to schedule a consultation today.
For additional information, refer to the Department of Labor’s Common Law Handbook.