Common Law Marriage in Texas: What It Means and Why It Matters
Common law marriage in Texas is recognized when two people agree to be married, live together, and present themselves as a married couple. When these elements are met, the relationship carries the same legal rights and responsibilities as a formal marriage, including community property rules, inheritance rights, and the requirement to obtain a legal divorce if the relationship ends.
Many couples in Texas mistakenly believe that simply living together makes them legally married, but that is not enough under state law. Texas recognizes common law marriage (also called an informal marriage) if three specific criteria are met at the same time: both partners agree to be married, they live together in Texas as a married couple, and they represent themselves to others as married. There is no required length of time for how long you must live together, but all three conditions must be present.
Common law marriage gives couples the same legal rights and responsibilities as couples who married through a formal ceremony, including property rights, inheritance rights, and the need for a formal divorce if the relationship ends. Proving a common law marriage often requires evidence such as joint tax returns, shared leases or financial accounts, or testimony that you held yourselves out as spouses. Filing a Declaration of Informal Marriage with the county clerk provides clear legal proof of your marriage.
In this article, you will discover what common law marriage means in Texas, how it is established and proven, and how a Texas family law attorney can help you protect your rights in situations involving estate planning, divorce, or inheritance.
What Common Law Marriage Means in Texas and Why It Matters
Common law marriage is a legally valid marriage created without a wedding ceremony or marriage license. This means you can be legally married in Texas even if you never walked down an aisle or signed official papers at a courthouse.
Texas is one of only a few states that still recognizes common law marriage, also called informal marriage. If you meet the legal requirements, you have the same rights and responsibilities as couples who had traditional weddings. This includes property rights, inheritance rights, and the obligation to get a formal divorce if you want to end the marriage.
Understanding your status matters because it affects major life decisions. If a common law marriage exists, it determines how assets get divided in a breakup, who can inherit property when someone dies, and whether you qualify for spousal benefits like health insurance or Social Security.
What Is a Common Law Marriage in Texas
A common law marriage is not just “living together” or being in a long-term relationship. Texas Family Code Section 2.401 creates two specific ways to establish an informal marriage.
The first way is filing a Declaration of Informal Marriage with your county clerk. Both partners must sign this document together, and it immediately creates a legal marriage. The second way requires meeting three strict legal requirements simultaneously, which we’ll explain in detail below.
What Are the Legal Requirements Under Texas Family Code
You must prove all three elements existed at the same time to establish a common law marriage without filing a declaration. Missing even one element means no marriage exists under Texas law.
Evidence of Agreement to Be Married
You and your partner must have agreed to be married right now, not someday in the future. This means you both intended to be husband and wife immediately, not just engaged or planning to marry later.
Courts look for concrete actions that show this agreement existed:
- Joint tax returns: Filing as “married filing jointly” with the IRS
- Insurance beneficiaries: Listing each other as spouses on life insurance or retirement accounts
- Property purchases: Buying homes or cars together as a married couple
- Bank accounts: Opening joint accounts as husband and wife
Evidence of Cohabitation in Texas
After agreeing to be married, you must have lived together in Texas as spouses. This means more than just sharing an apartment as roommates or dating partners.
The law requires you to establish a shared household and live together as a married couple. Courts examine whether you created a shared domestic life, not just convenient living arrangements.
Evidence of Holding Out as Married
You must have presented yourselves to others as a married couple consistently. This element, called “holding out,” requires you to represent your relationship as a marriage to your community.
Strong evidence includes:
- Introductions: Calling each other “my husband” or “my wife” to friends, family, and coworkers
- Name changes: Using the same last name in daily life
- Wedding rings: Wearing rings and telling people you’re married
- Social media: Posting about your marriage or listing your status as married
Should You File a Declaration of Informal Marriage?
Filing a Declaration of Informal Marriage is the clearest way to establish your marriage if both partners agree. You both visit the county clerk’s office together, sign the sworn statement, and pay a small fee.
The benefits are immediate legal recognition and undisputed proof of marriage. This makes qualifying for spousal benefits, inheritance rights, and other legal protections much easier. The downside is creating a public record that requires both partners’ cooperation, and you’ll need a formal divorce to end the marriage later.
Does the Length of Cohabitation Matter?
No specific time period is required to create a common law marriage in Texas. This is one of the biggest myths people believe about informal marriage.
You could establish a common law marriage in weeks if you meet all three legal requirements. Conversely, you could live together for decades and never be legally married if you don’t satisfy the three elements. The six-month rule, seven-year rule, and other time-based myths are completely false under Texas law.
Why Does Common Law Marriage Status Matters in Texas?
Establishing a common law marriage creates the same legal rights and obligations as a traditional marriage. It’s not a lesser form of marriage or a “trial run”, it’s a real marriage with serious consequences.
Property and Debt as Community Property
Texas community property laws apply once you’re married, meaning most assets and debts acquired during marriage belong to both spouses equally, which directly impacts how assets are split in a divorce.
This includes income, real estate, vehicles, and retirement accounts earned or purchased while married.
During divorce, courts must divide community property in a “just and right” manner, which often means a roughly equal split. Community debts like credit cards and mortgages also become both spouses’ responsibility regardless of whose name appears on the accounts.
Inheritance and Benefits
Legal spouses gain automatic inheritance rights under Texas law if their partner dies without a will. You can also qualify for Social Security survivor benefits, continue health insurance coverage, and access retirement accounts as a surviving spouse.
Without proof of marriage, you have no automatic right to inherit property or receive these benefits, even after decades together.
Spousal Maintenance Eligibility
You can only request spousal support, known as alimony in Texas, in divorce if you can first prove a marriage existed. Texas requires marriages to last at least 10 years for most spousal maintenance claims, making the marriage start date crucial for financial support.
How Do You End a Common Law Marriage
There is no such thing as “common law divorce” in Texas. Once you establish a common law marriage, you must get a formal divorce through the court system to end it legally.
The divorce process is identical whether you had a church wedding or a common law marriage. You must file for divorce in Texas, resolve issues like property division and child custody, and obtain a Final Decree of Divorce signed by a judge.
Simply separating or moving out before divorce is final doesn’t end the marriage legally. You remain married until a court grants a divorce, which means you cannot remarry someone else without committing bigamy.
Two-Year Presumption After Separation
Texas law creates a special rule if you wait too long after separating. If you don’t file a lawsuit to prove your common law marriage within two years of separation, the law presumes no marriage ever existed.
This presumption can be overcome with strong evidence, but it makes proving the marriage much harder. Acting quickly after separation protects your rights and avoids this legal hurdle.
What if One Partner Denies the Marriage?
Common law marriage disputes often arise during breakups or after someone dies, when one person claims they were married while the other side denies it. The person claiming marriage exists must prove all three legal elements with clear and convincing evidence.
Courts examine all circumstances surrounding your relationship to make this determination. The quality and consistency of your evidence matters greatly:
| Evidence Type | Strong Proof | Weak Proof |
| Documents | Joint tax returns, mortgage deeds listing you as spouses | Shared utility bills without marital references |
| Witnesses | Close family members who knew you as married | Casual acquaintances who assumed your status |
| Public Acts | Consistent introductions as spouses over years | Occasional references to marriage |
Same-Sex Common Law Marriage and Relation Back
Since the Supreme Court’s 2015 Obergefell decision legalized same-sex marriage nationwide, same-sex couples can establish common law marriages in Texas. Texas courts apply the “Relation Back Doctrine,” which recognizes your marriage from the date you first met all three requirements, even if that was before 2015.
This backdating can significantly impact property division and spousal support calculations in divorce cases. It also affects inheritance rights and benefit eligibility for couples who met the requirements years before same-sex marriage became legal.
Common Myths and Costly Mistakes
Believing false information about common law marriage can cost you legal rights or create unexpected obligations. These myths persist despite being completely wrong under Texas law.
The biggest misconceptions include:
- Time creates marriage: Living together for any specific period doesn’t automatically make you married
- It happens automatically: You must actively meet all three legal requirements; marriage doesn’t just occur
- Common law divorce exists: You need a real divorce in court to end any marriage
- It’s less serious than “real” marriage: Common law marriage has identical legal consequences
Steps to Protect Yourself Now
Whether you want to establish or avoid a common law marriage, taking clear steps now prevents future legal problems.
If you intend to be married:
- Be consistent: Always introduce yourselves as spouses and use the same last name
- Document your intent: File joint tax returns and list each other as spouses on official documents
- Consider filing a declaration: This removes all doubt about your marital status
If you don’t want to be married:
- Avoid spousal language: Never refer to each other as husband, wife, or spouse
- Keep finances separate: Maintain individual bank accounts and file separate tax returns
- Draft a cohabitation agreement: This legal document defines your rights and responsibilities as unmarried partners
Do You Need a Lawyer for a Common Law Marriage Dispute?
While filing a Declaration of Informal Marriage is simple enough to do yourself, you absolutely need legal help when disputes arise. Proving a common law marriage exists when someone denies it requires extensive evidence gathering and legal expertise.
When hiring a Texas divorce lawyer, you want someone who knows how to collect witness testimony, financial records, and other proof to build your case. They also understand how to challenge false marriage claims that could make you liable for debts or property division you don’t owe.
Get Started with a Consultation
Common law marriage issues can dramatically affect your financial future and legal rights. At Frank Vendt Child Custody & Divorce Attorneys, we help clients throughout Fort Bend County navigate complex family law matters.
Our team understands the nuances of Texas common law marriage and can help you determine your legal status or resolve disputes. We provide the compassionate, transparent guidance you need during these challenging situations.
Common Law Marriage in Texas FAQs
How Long Do You Have to Be Together for Common Law Marriage in Texas?
There is no time requirement for common law marriage in Texas. You could establish a legal marriage in days if you meet all three requirements, or never be married after living together for decades if you don’t meet the legal standards.
What Are the Three Elements of Common Law Marriage in Texas?
The three required elements are: agreement to be married right now, living together in Texas as spouses, and holding yourselves out to others as a married couple. All three must exist simultaneously.
Can You Evict Your Common Law Spouse in Texas?
No, you cannot evict a common law spouse like a tenant because they have equal ownership rights to marital property. You must go through formal divorce proceedings to resolve property and living arrangements.
Do Other States Recognize Texas Common Law Marriage?
Yes, all states must recognize a valid Texas common law marriage under the Full Faith and Credit Clause of the U.S. Constitution, even if those states don’t allow common law marriage themselves.
What Happens if You Separate Without Getting Divorced?
If you don’t file legal action to prove your common law marriage within two years of separation, Texas law presumes no marriage existed. You can still prove the marriage later, but it becomes much more difficult.
Can Same-Sex Couples Have Common Law Marriage in Texas?
Yes, same-sex couples can establish common law marriage in Texas since 2015. The Relation Back Doctrine may recognize the marriage from an earlier date when you first met all requirements, even before same-sex marriage was legal.
Do You Need a Divorce to End Common Law Marriage?
Yes, common law marriage requires formal divorce proceedings identical to ceremonial marriage. There is no “common law divorce”, you must go to court to legally end the marriage.
Contact Frank Vendt Child Custody & Divorce Lawyers
If you’re facing common law marriage questions or disputes in Richmond, Sugar Land, Katy, or anywhere in Fort Bend County, our experienced team, including our Sugar Land divorce lawyer, can help. Contact Frank Vendt Child Custody & Divorce Attorneys today to schedule your confidential consultation and protect your legal rights.
