The institution of marriage carries significant legal, social, and personal implications. While most people understand the traditional concept of marriage – a ceremony, a certificate, vows exchanged – there is another type of marriage recognized by the state of Texas that people often overlook: the common law marriage. In this article, we shed light on this topic and navigate through its intricacies according to the Texas Family Code.
For personalized advice, please get in touch with Atty. Tyler Monahan, partner at Turner-Monahan, PLLC, to discuss your case.
What is Common Law Marriage?
Common law marriage, also referred to as informal marriage in Texas, is a legally recognized union between two individuals without a formal wedding ceremony or marriage license. The state of Texas acknowledges such marriages under specific conditions, which we will explore in the next section. A common law marriage carries nearly the same rights and responsibilities as a formal marriage, including the division of property and child custody upon separation.
Conditions for a Common Law Marriage
Under the Texas Family Code, an informal or common law marriage can be established if the couple:
- Agree to be married,
- Live together as husband and wife in Texas, and
- Represent to others in Texas that they are married
These requirements are outlined in Section 2.401(a)(2) of the Texas Family Code, which states, “The man and woman agreed to be married, and after the agreement, they lived together in this state as husband and wife, and there represented to others that they were married.”
It’s crucial to understand that all three conditions must be met concurrently. A couple can’t claim a common law marriage simply by living together for a specific period or having children together.
Legal Declaration of Informal Marriage
Apart from the above conditions, the Texas Family Code also allows couples to formally declare their informal marriage. This process involves filing a declaration and registering an informal marriage with the county clerk, as mentioned in Section 2.401(a)(1) of the Texas Family Code. This declaration gives a clear legal standing to the couple and can simplify matters in the event of a legal dispute or separation.
Implications of Common Law Marriage
If a common-law couple decides to separate, they must obtain a legal divorce, just like a formally married couple. This could involve property division, alimony, and child custody issues. Once a common law marriage is established, it’s a binding legal contract carrying all rights and responsibilities.
Property Division
Under Texas law, the property division in a divorce (common law or formal) is governed by the “community property” principle. As stated in the Texas Family Code, Section 7.002, “the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” This means that any property, assets, or debts acquired during the marriage are generally considered communal property and must be divided fairly upon divorce.
While the law stipulates a ‘just and right’ division, this doesn’t necessarily mean a 50/50 split. The court considers various factors, such as each spouse’s earning capacity, health, who has custody of the children, and the nature of the property.
Alimony
In Texas, a spouse in a common law marriage may qualify for spousal maintenance (alimony) upon divorce, similar to a formal marriage. Eligibility criteria are laid out in Texas Family Code Section 8.051. One condition is when a spouse can’t generate enough income for their minimum reasonable needs due to a disability.
Another criterion arises if the marriage has lasted for ten years or more. Also, if a spouse is the primary caregiver of a child from the marriage who needs substantial care for a physical or mental disability, they may be eligible for alimony. Finally, if a spouse is convicted or receives deferred adjudication for a family violence offense, the other spouse can request maintenance.
Child Custody
Child custody matters in Texas are addressed under the “best interests of the child” doctrine. The Texas Family Code Section 153.002 states that “The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”
Regardless of the marriage type, the court determines child custody and visitation arrangements based on what it deems in the child’s best interest. Factors considered can include the child’s emotional and physical needs, the capability of the parents, the stability of the home, and sometimes, the child’s own wishes if they are at least 12 years old.
Pre-Nuptial and Post-Nuptial Agreements
When dealing with property division and alimony issues, it’s important to note the relevance of pre-nuptial and post-nuptial agreements. These legal contracts can outline how property and assets will be divided upon divorce. While pre-nuptial agreements are entered before the marriage, post-nuptial agreements are made during the marriage.
For a common law marriage, a couple can still create a legally binding pre-nuptial or post-nuptial agreement. However, the couple should consult a family law attorney, like those at Turner-Monahan, PLLC, to ensure the agreement is legally sound and enforceable.
Turner-Monahan, PLLC: Your Advocate in Common Law Marriage Matters
Understanding the concept of common law marriage and its ramifications can be complex and challenging, especially when it comes to legal matters. But you don’t have to navigate these complex waters alone. At Turner-Monahan, PLLC, we have decades of experience providing high-quality, experienced representation in family law matters, including those involving common-law marriages.
Disclaimer
The commentary and opinions are for informational and educational purposes only and not to provide legal advice. You should contact an attorney in your state to obtain legal advice concerning any particular issue or problem. You can become a client and enter the attorney-client privilege only after hiring Turner-Monahan, PPLC, by signing a written retainer agreement.
