What Is Common Law Marriage?
In last week’s post, we used the phrase “stumble into a Common Law marriage” when we were talking about deciding whether something was SEPARATE PROPERTY or COMMUNITY PROPERTY.
This week we want to talk a little more about COMMON LAW MARRIAGE. Let’s start with what it is not:
It is not a CEREMONIAL MARRIAGE. A marriage license was not issued. A ceremony was not conducted by an official who is allowed to perform marriages. If you can’t remember going through a ceremony, the marriage may not be valid for other reasons.
It is not created by how long you live together with someone. Although most people think this is what creates a COMMON LAW MARRIAGE, time has nothing to do with it. This is the biggest mistake people make.
Then what is it? There are three requirements to proving a COMMON LAW MARRIAGE:
The couple must agree to be married;
Once they agree to be married, the couple must live in Texas as spouses; and
Once they agree to be married, the couple represents or “holds out” to other people in Texas that they are married.
As if that isn’t confusing enough, here’s the reality: No couple is going to sit down one romantic evening and sign an agreement that they are going to be married. So the first requirement is going to be proved by the way the couple acts under the second and third requirements.
And that’s where they stumble. They do something by mistake that meets the second and third requirements. Usually it’s “holding out” in some way.
Living together? No problem.
Calling themselves a couple? No problem.
Telling their best friends they are married? Danger sign!
Buying a house and signing the deed as husband and wife? Problem!
Filing federal income taxes together? Big Problem!
Posting on Social Media? Be very very careful! It’s a tough call because social media is relatively new. There are a lot of things to think about: Who made the post? How many followers on the account? Is the account meant to be seen by the public? Was the post an advertisement?
Why do we care? Because once again, dates matter. Proving a COMMON LAW MARRIAGE exists can change a child support case into a divorce case. It can change the ownership of property. It can wreck an estate plan. It can upset an inheritance. Stumbling around can be dangerous.