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  • Writer's pictureEric Beal

Common Law Marriage: How do I know if I have one?

In Texas, there are two ways to get married, and two ways to get unmarried. You can be ceremonially married or common law married. To get unmarried – regardless of how you got married – you need a divorce or death.

There is no such thing as a common law divorce.

There are circumstances that would seem to warrant a finding of common law divorce, but they don’t. For example, if two married persons cease living together, haven’t seen each other in a couple of decades, haven’t spoken to or communicated with each other in decades, and have no property which they consider joint, many people would feel that their status is tantamount to divorce. It’s not.

Once again, there is no such thing as common law divorce.

So, it’s best to know when you are married, since being married means that everything you own is presumed to be community property if you die or end up in a divorce.

A common law marriage arises when three things have happened:

  1. The two people live together;

  2. The two people represent to others that they are married; and

  3. Both people have agreed to be married.

Think of people living 100 years ago out in the remotest part of west Texas. There had to be a way for them to get married, since having sexual relations or living “in sin,” without the benefit of marriage, was considered taboo.

Common law marriage provided people that did not have a preacher or courthouse handy a way to make themselves “legal.”

It all made sense back then. Whether it does now is a question for another day. Regardless, the law still exists.

If you live together, even for a brief period of time, and represent to others that you are married – by, for example, introducing the other person as your wife to new people you meet, filing joint tax returns, etc. – then the only question is whether the two of you have agreed that you are married.

If neither person claims that there was an agreement of marriage, the issue may never arise.

In family court, however, the problem can arise when the couple breaks up, if the first two requirements have been met. Then, the one that would most benefit from a finding that they are married sometimes claims that they are.

If the court is convinced that all three requirements have been met, then the break up becomes a divorce. And divorces have all sorts of consequences with respect to division of property, spousal maintenance, etc.

If you meant to be married, having all of those things decided by a court is understandable. If you didn’t, having to argue about all those can be devastating.

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