In Texas, you don’t need to have a wedding ceremony or get a marriage certificate in order to be married. All that needs to happen in Texas for the Court to find that you’re married is that the following elements are satisfied:
1. That you, an unmarried person, agreed to be married with one other unmarried person;
2. That you live together with this other person;
3. That you hold yourselves out publicly in Texas to be married; and
4. That all of the above existed at the exact same time at least once.
Okay, so now you know the elements, but how or if the elements are satisfied is another question. An attorney who focuses on family law in Texas will have to do an analysis based on your specific facts and situation, but below are a few examples for each element.
Element One: Agreement to be Married
An agreement to be married is fairly straight forward. It means that at some point you discussed marriage with your partner, and you both decided that you were married. This conversation could take place in the privacy of your home, or it could take place in front of all of your friends and loved ones in the form of a wedding ceremony. Either way, an agreement to be married was made, and there was an understanding that you were then married. How do you prove this element? Well, if there was a ceremony, whether at a venue, or in a backyard, that would be strong evidence. The most common way this is proved up is through testimony, however. The Court will listen to the testimony of the parties, and if the judge finds a party’s testimony of an agreement to be married credible, that’s enough to satisfy this element.
Element Two: Residing Together
This one should be fairly straight forward, right? Wrong. What does live together even mean? How many nights do you have to spend somewhere to be considered living there? How many nights with your partner also there? What if you have other places you also spend the night or day? Do you have to sleep at a place at all for that to be considered where you live? Can you live in more than one place? As you can see, this element can also be very tricky. The easiest way to prove this element is through both testimony and documentary proof. If you own a home and have it designated as your homestead with the county, that’s pretty good evidence. If you have a place listed as your residence in any official document with a school district or place of employment or your utility mail, that can be pretty easy proof. If you’re listed as the occupant on a lease or a tenant on a lease, also proof. This element can be demonstrated through testimony as well, and you can live in more than one place. If the facts are complicated, you’ll need to analyze this thoroughly with an attorney.
Element Three: Holding Yourself Out as Married in Texas
What does “holding yourself out” mean? This one can also be complicated. The long and short of it is, do your family members, friends and members of your community believe you are married based on your words or behavior that occurred in Texas? A common law marriage cannot be a secret for any reason, not even if you have a good reason. Your family, friends, and/or community might think you are married because you call each other husband and wife, you wear rings publicly, you have a union or ceremony to be married and invite people, you file your taxes as married, you mark yourself as married on other official documents with the government or your employer, your relationship status on social media or online presence is marked as married, and the list goes on. Did you write a birthday card to your partner that said “Happy birthday, to my beautiful wifey,” and then did she post that on the fridge for everyone to see? That could be enough. You’ll want to discuss what facts might exist in your case with your attorney to see if you’ve held yourself out in Texas to be married.
Element Four: All Elements Existing at Once and Date of Marriage
If you have agreed to be married, you live together, and you have held yourself out to be married in Texas, that exact moment, when those three elements exist at once, is your date of marriage. If you agreed to be married, held yourself out as married, but you've never lived together (was someone in jail the whole time, in a different state or country the whole time?), then you're not common law married. Your date of marriage is the exact moment that all of the above elements are met at once. It could be a Thursday at 2:00 p.m. after a conversation and a Facebook relationship status change, on the couch in your shared living room, or it could be following a beautiful ceremony that you had with your family and friends without going to the courthouse. Both scenarios are equally valid and legal. Even same-sex couples who held themselves out to be married before it was legal in Texas could be considered married – if all the elements were properly satisfied. This is because when the United States Supreme Court announces a constitutional right, in this case, a right for two people of the same sex to be legally married, that right cannot be taken away by any state, and that right becomes retroactive to all time that came before the ruling. This means, just because it wasn’t legal for a gay couple to be married when a gay couple met all those elements in Texas, a judge today could still find that they were common law married, and backdate the marriage to the appropriate date.
Do I Have to Get a Divorce?
If I’m common law married, do I have to get a divorce? Yes, if a judge finds a common law marriage exists, or if you file an agreed declaration of common law marriage at the courthouse, you now have to go through the divorce process if you want the marriage to end. Once a judge determines that a marriage exists, there is no legal difference between a common law marriage and an “official” marriage where a marriage certificate was completed and filed. Both types of marriage either end in divorce or death and are not treated differently from one another in any way. However, something to note regarding the burden of proof in a common law marriage is that it is the responsibility of the party asserting a common law marriage to provide the evidence necessary for the judge to make a determination. However, if you and your partner have not resided together in the two years prior to the common law marriage divorce petition being filed, then there is a presumption against the marriage existing that must also be overcome by the party wishing to establish the marriage. This has the effect of making your case that much harder if you want to establish a common law marriage. It’s not impossible to find a marriage in this scenario, just more difficult.
Whether you want to be married, or you don’t want to be married, or you just don’t know if you’re married and want to proceed correctly, common law marriage claims are a case type that we regularly handle. We have successfully established common law marriages and successfully defended against such marriage claims. Please contact our office online or call us at 512-944-3329 for a free twenty-minute consult to discuss your case.