Author: Shelby Benavidez 

Contributing Attorney: Casey Kelly, Legal Director and Attorney 

Defining Common Law Marriage in Texas  

How Long Do You Have to Be Together for Common Law Marriage in Texas?  

A huge myth surrounding common law marriage in Texas is the assumption that couples have to live together for a specific number of years to be considered legally married. This simply isn’t true. For common law marriage to be established in Texas, you just need to check three boxes: you and your partner have to agree to be married, live together as spouses, and basically spread the word that you’re married.  

“Texas does recognize common law marriage. It’s often referred to as an informal marriage, and there are a couple ways you can establish this. First, you can file a Declaration of Informal Marriage,” Casey Kelly, legal director and attorney, said. “However, most common law marriages are established the second that two people agree they are going to be married, live together as spouses, and announce to the outside world that they are married. The second those three things happen contemporaneously, you are common law married.” 

These three things have to coexist for the relationship to be legally recognized. Simply living together or referring to one another as spouses in isolation doesn’t establish a valid common law marriage. So, despite what several sites claim, you can’t just declare someone as your spouse because you said their name three times – they have to want to marry you.  

What is a Common Law Spouse Entitled To?  

Once a common law marriage is established in Texas, spouses have the same rights as those in a formal, ceremonial marriage. This means that you’re entitled to the same protections under Texas marital law, including claims to community property acquired during the relationship, eligibility for spousal support or alimony in certain cases, and inheritance rights if your spouse dies without a will in place. Common law spouses also have access to employer-sponsored benefits, such as health insurance. 

“Marriage is marriage,” Kelly said. “A common law marriage operates the same way as a formal marriage. From social security benefits to filing joint taxes, all of those apply to common law marriage.” 

However, if a dispute arises over whether a common law marriage existed, the person who claims the marriage did exist has to provide proof. Courts may consider things like joint bank accounts, shared leases, or testimonies from friends and family.  

Risks of Common Law Marriage  

So, if you say you’re married, and you want to be married, why not just get married? The simple answer is that not everyone wants to. Through common law marriage, couples can enjoy the legal benefits of being married without having to have a formal ceremony or applying for a marriage license.  

Unfortunately, common law marriage has its risks. It can get extremely complicated if legal matters arise, especially without proper documentation. Therefore, if you and your partner are considering this route, proceed with caution. 

“Probate and divorce cases could get nasty if there isn’t documentation in place,” Kelly said. “At that point, it becomes a fact issue for the court to decide whether or not the marriage did exist.” 

Ending a Common Law Marriage in Texas  

Do You Have to File for Divorce in a Common Law Marriage?  

If your common law marriage is legally recognized, then yes, you would have to file for divorce to end the common law marriage The legal consequences of separation, especially the division of property, debt, and other assets, remain the same as a traditional marriage.  

“There is no such thing as a common law divorce. So, if one person says they were married, the other says they were not, three things have to be proven to move forward,” Kelly said. “The courts have said you could infer that a couple agreed to be married if they lived together as married partners or told people they were married partners. They will also consider whether they bought a house together as married partners, if both names are listed on any other title documents as married partners, and the marital status on their tax records.” 

Additionally, Texas law imposes a two-year statute of limitations following separation. During these two years, you have to prove the marriage existed before having access to any spousal support or division of assets. If no legal action is taken within that time, the court will generally presume that you were never married, and it will be much more difficult to pursue spousal rights later on.  

How Are Assets Divided in Common Law Marriage?  

Texas is a community property state, which means that once you are married, both spouses have rights to any assets acquired during the marriage, regardless of who purchased them. It’s no different in a common law marriage. After filing for divorce, the court will divide all assets acquired during the relationship in a manner it deems “just and right.”  

“All the same community property laws apply. However, it can get a little bit messy because there’s no exact date to pinpoint when you got married,” Kelly said. “Informal marriage is a guessing game of when you moved in, when you started referring to your partner as your spouse, and when you started telling other people that you are married. This is why documentation is so important. Something I would recommend, regardless of a formal or informal marriage, is a prenuptial agreement. It’s a safety net. It doesn’t mean that you don’t love your partner, but in worst case scenarios, it’s better to put this in place while you still love your partner, rather than delaying it and risking things getting ugly while dividing assets.” 

It’s hard to determine who will get what in these cases, but if you owned something before the marriage was established, you will most likely have sole rights to it. Documentation such as receipts, bills of transfers, and bank statements can help prove ownership of certain assets. 

“You can draft a prenup agreement while still taking care of your partner,” Kelly added. “The court will enforce the agreement because it’s a contract unless the contract is unconscionable or if it was signed in extreme duress. Have it drafted 3-4 months before the wedding, have it signed a month before the wedding, and then have it ratified within 30 days of the marriage, if necessary.” 

How to Avoid Common Law Marriage in Texas  

Some couples don’t want the hassle of getting married or getting divorced if it doesn’t work out. So, how do you avoid being accidentally married under common law? There are several ways to avoid this. Because Texas requires specific criteria for common law marriage to be recognized, the easiest way to avoid accidental marriage is to avoid that criteria. For example, don’t refer to each other as spouses or engage in conduct that implies you’re married, like filing joint tax returns or listing each other as spouses on legal or financial documents.  

To make it extremely clear, you and your partner can sign a cohabitation agreement that explicitly states you have no intention of getting married. 

“If two partners are going to move in together but, for whatever reason, don’t want to be married, they would draft a Non-Marital Cohabitation Agreement that says they are living together as partners, but do not consider themselves married.” 

Keep finances separate, use individual bank accounts, and avoid joint ownership of major assets to prevent the legal presumption of marriage. These steps can reduce the risk of legal disputes down the line if you separate from your partner or one of you passes away. 

Couples aren’t required to file any paperwork to establish a common law marriage in Texas. However, you can make the relationship official by signing a “Declaration of Informal Marriage.”  

“You can file a Declaration of Informal Marriage through the Department of State Health Services” Kelly said. “This is rare because if you’re going to go through the effort to file anything with the state, you’ll probably just file a marriage certificate, but some sort of documentation is worth it.” 

This declaration serves as legal evidence of the marriage, and can help prevent future disputes about its existence. It’s especially useful in situations involving medical emergencies, inheritance claims, or the need to demonstrate spousal status to government or financial institutions. 

Without a declaration, beneficiary notice, medical power of attorney (MPOA), or some other form of documentation that proves the marriage exists, you could face serious complications down the line. For example, let’s say your spouse suffered a severe medical emergency and had to be hospitalized. Because you aren’t married and there’s no legal documentation that you have rights to your spouse, they could deny you visitation access. Additionally, if your spouse’s condition were to worsen and medical decisions had to be made, you don’t have automatic rights to make those decisions. If no one was ever appointed as the MPOA, the right to make those decisions would likely go to the next of kin.  

“If you’re going to agree with your partner that you’re married, go ahead and fill out the Declaration of Informal Marriage,” Kelly advises. 

Estate Planning in a Common Law Marriage 

Estate planning is extremely important for couples in a common law marriage because the informal nature of the relationship can lead to confusion or legal challenges after one partner’s death. Without a will, the surviving partner may still be entitled to a portion of the estate, but again, this typically requires proving the marriage existed.  

“Let’s say the parents of the deceased claim their child was never married,” Kelly proposes, “you now have someone claiming you didn’t fulfil the three requirements by sharing with the public that you are married. Now the surviving spouse has to bring in a bunch of witnesses to say, ‘Yes, they have always introduced each other as husband and wife.’ The court then has to decide which is more likely to be true. If they can confirm the marriage, they will likely grant the estate to the spouse, but there’s no guarantee.” 

To avoid uncertainty, you and your spouse can draft valid wills and consider naming each other as beneficiaries on life insurance policies, retirement accounts, and payable-on-death bank accounts. You may also want to establish powers of attorney for financial and healthcare decisions and create joint trusts for major assets. These steps will help make sure that each partner’s wishes are honored and minimize the potential for any push-back from surviving relatives.  

Custody and Child Support 

When a common law couple has children together, legally establishing the marriage becomes critical because unmarried fathers do not have the same rights as fathers who are legally married to the child’s mother.  

“Fathers are only presumed fathers when they are married to the mother,” Kelly explains. “If they are unmarried, paternity has to be established by signing an Acknowledgement of Paternity (AOP) or by a court ordered DNA test to confirm the relationship between the father and the child.” 

This can be risky because, if the relationship ends, the mother could withhold visitation to the child, or the father wouldn’t be ordered to pay child support until the court establishes paternity. 

“More likely than not, if you’re living together in a romantic relationship, the dad’s going to be at the hospital to sign the AOP at the time of the birth,” Kelly said. “However, if things sour and the father doesn’t sign an AOP, I would recommend for the mom to file a divorce and say in the petition that they were married at the time of the birth and the respondent is the father. At that time, the court can confirm the marriage, and either adjudicate the relationship or order a DNA test. Once paternity is established, regardless of whether the marriage was recognized, the court will designate conservatorship and create child support orders.” 

Conservatorship, or custody decisions, determine who the child will live with primarily and what your rights are as a parent. Visitation schedules will be set by the court, and child support is calculated based on state guidelines. 

Understanding the legal aspects of common law marriage is crucial for protecting your rights. Whether you are considering a common law marriage, trying to prove one, or trying to avoid it altogether, legal clarity is key. Consulting with a qualified family law attorney can help protect you and your partner, and make sure your relationship is properly documented and recognized under Texas law.