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Are You Common Law Married?

lazarlaw blog

On a recent night out ecstatically dipping a toe into post-pandemic night life in Austin, I heard a person describe himself as “common law married,” which piqued my curiosity. I wondered what he meant by that because, after a decade of being a divorce lawyer in Austin, I’ve learned that people misunderstand “common law marriage” all the time.

He went on to share the following facts, which he believed qualified him as, “common law married:”

  1. He was living with his girlfriend;
  2. They had been together for 7 years; and
  3. They intended to eventually be legally married.

Because I couldn’t help myself, I cross-examined him just a bit. He was adamant that he and his girlfriend had no present intention or agreement to actually be married; they did not refer to each other as husband and wife; and they did not tell anyone else that they were husband and wife.

So, guess what? He’s not common law married.

What is Common Law Marriage, or Informal Marriage?

In Texas, you can be Informally Married or Ceremonially Married, but there is no “Common Law Married.” An Informal Marriage can be established when you and your spouse file a Declaration of Informal Marriage, or when you can prove the following:

  1. That you and your spouse live together;
  2. That you and your spouse have an agreement to be married; and
  3. That you and your spouse hold yourselves out to the public as married to each other.

You see what’s missing, right? There is no time period required for an Informal Marriage in Texas.

Can you Agree to be Secretly Married?

No, there can be no secret marriage in Texas. If you are party to an Informal Marriage, there is a requirement of publicly holding yourselves out as married to each other, which means you tell other people you are husband and wife; you refer to each other as, “my husband,” or, “my wife;” or you file your taxes or other important documents as married.

If you decide to become ceremonially married or to file a Declaration of Informal Marriage, then you are clearly holding out to the public as married—by virtue of the ceremony with other participants and guests, or by virtue of filing a legal document with the State that becomes a part of the State’s marriage records. There is just no scenario in which the State will recognize a “secret marriage.”

In today’s less formal / more relaxed society, it is not unusual for two people to disagree about whether they are married or when their marriage began. If you are unsure where things stand for you in your relationship or informal marriage, contact an experienced marriage and divorce attorney to learn more.

How do you get a Common Law Divorce?

There is no, “Common Law Divorce.” If you and your spouse are Informally Married, or consider yourselves “Common Law Married,” and will be separating or divorcing, you will go through the same divorce procedures as any other married couple.

However, it is imperative that you meet with an experienced divorce lawyer early on to understand the risks and problem areas when evaluating or negotiating the division of your marital estate when you have been informally or “common law married.” More often than not, an in-depth analysis is required to determine what is community or separate property when you have been in an informal marriage.

We have Children—How does that Change the Game?

When you are separating and you have children, the process will be different if you are married versus when you are not married, so it is very important that you consult with an experienced divorce and custody lawyer to understand your rights and obligations—to your children and to your co-parent.

Speak with a Marriage and Divorce Lawyer Today!

So often, people wait until it is too late to contact a divorce lawyer, believing instead they can handle these legally complex issues on their own. Invest in a consult with one of our experienced divorce and custody lawyers sooner, rather than later, to learn more about your family law matter and how to secure the future you want and deserve. Send us an email or call 512-477-1600 to schedule a consult.

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