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What is common law marriage?

Wednesday, July 18, 2018

Determining the validity of a marriage in Texas may be one of the first steps in ending a marriage or relationship. A common law marriage, if proven has the same validity of a formal marriage.

A common law marriage requires proof that the couple was not already formally or informally married to anyone at the time the marriage was created. The spouses must have been at least 18-year-old when they were married and had to agree to marriage. The couple had to hold themselves out to others as being married and lived in Texas as a married couple. Same-sex couples can also have a valid common-law marriage if these conditions are met.

Proving a valid common law marriage is essential for seeking divorce rights. For example, all property obtained during marriage is community property. If there a valid common law marriage, all property is divided in the same manner as if the couple was formally married.

Property division does not depend on which partner made the purchase or who is named as the owner. Debts acquired during a common law marriage are equally allocated between the spouses.

When there is no proven common law marriage, there is no division of marital property or debts. Single people will keep their personal property and any property titled to them. They will also remain liable for their debts.

Proving a common law marriage is also important for other reasons. Common law spouses are entitled to inheritances from the other spouse if that spouse died without a will.

There are several ways to demonstrate common law marriage. In addition to the couple representing themselves as being married, they can also show that they used the other spouse's last name, filed joint tax returns, signed leases and other legal documents as spouses, named their partner on their health insurance, made joint loan applications and had children together. Couples can also sign a declaration of informal marriage with a county clerk.

An attorney can help a spouse preserve their right at the end of a marriage and resolve a dispute over divorce issues. Legal representation can also assure that a spouse can exercise their rights and options.

Source: Texas Rio Grande Legal Aid-Austin Office, "Common law marriage," Accessed Sept. 25, 2017

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