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Common Law Marriage:  Oops did I accidentally get married?

Common Law Marriage: Oops did I accidentally get married?

Pasadena Texas Common Law Marriage

Common Law Marriage: How to Keep From Accidentally Getting Married

Common Law marriage, also known as an informal marriage, is a type of marriage between a man and a Common Law Marriage Pasadena Texas Lawyerwoman who have agreed to be married, who "hold themselves out" as married to third parties, and live together during this agreement. Couples that meet these requirements can find themselves married even though they have never obtained a marriage license or participated in a formal marriage ceremony.

Texas Family Code section 2.401 lists out the elements that must be shown to prove an informal marriage. In order to show a "common law" marriage it must be shown that the parties:

1. Agreed to be married, and

2. lived together as husband and wife in the State of Texas, and

3. tell other people in Texas that they are husband and wife.

Agreement to be Married

The parties have to agree to be married. The agreement must be for a present and permanent marital relationship, it cannot be an agreement to get married sometime in the future. To prove this agreement to be married, the parties can offer direct testimony of an agreement to be married or can offer an actual written agreement made by the parties. The agreement may also be proved by circumstantial evidence of the last two elements to a common law marriage. So just by proving that the parties lived together and held themselves out as married can be enough to prove the agreement.

Examples of courts finding an agreement to be married:

1. Wife testimony that husband did not contradict that the two of them had "agreed to be married."

2. Wife testimony that the couple had agreed to "live like husband and wife."

3. Husband calling woman his "wife," his parents calling her their "daughter-in-law," and the woman being listed as his wife on loan documents.

4. Woman's testimony that she and the man had agreed to be married even though man denied they had agreed to be married.

Examples of courts finding no agreement of marriage:

1. Man promised to stay with woman through her illness

2. Behavior that could also be construed as courtship, like living together, holding hands, and showing affection.

3. Man's testimony he was engaged to woman, she was his girlfriend, and he did nt consider them officially married yet.

4. Marriage proposal and giving of engagement ring.

Live together as husband and wife in Texas

In order to find an informal marriage exists, there parties must live together. The "cohabitation requirement consists of a couple living together as husband and wife, maintaining a household, and doing things that are normally done by married couples, not just having a sexual relationship while living together. There is no formal requirement for how long a couple must live together to satisfy this prong of the common law marriage.

Examples where courts have found cohabitation exists:

1. Evidence that man and woman lived together in one house for two and a half months.

2. Evidence that a man regularly stayed at a woman's house even though he occasionally stayed at his former home where his kids lived.

3. Testimony that a man who was employed in another country, would come back to Texas and stay with a woman often and would travel with her as well.

Examples where courts have not found cohabitation exists:

1. Evidence that man and woman had sex at parents home, never stayed full night together and never moved any items into a common room together.

2. Evidence that man and woman had separate beds and lived in separate rooms, even though they sometimes lived in same house.

Contact a Pasadena Texas Divorce Lawyer today

Holding out to other people that the couple is married

After proving that there was an agreement to be married, and that the parties actually lived together, the last element to be proven is that the parties told other people in Texas that they were married. Texas law says that there can not be a "secret" common law marriage. If a couple only tells close friends and relatives but tries to conceal the marriage from the general public, the holding out requirement has not been met. Holding out can be established by the parties conduct alone, there does not have to be a spoken outcry admitting a marriage. The holding out requirement cannot be done by only one party, both parties must hold out to find a marriage exists.

Examples where courts have found that parties have "held out:"

1. Testimony that the parties called each other "husband" and "wife" to friends and had filed a notarized property deed listed them as spouses.

2. Evidence one party was listed as a spouse on the other party's life insurance policy

3. Evidence that a couple filed a signed credit application as husband and wife.

Examples where courts have not found the parties have "held out. "

1. Evidence that a couple told people an unknown number of times they were husband and wife.

2. Evidence that wife had introduced husband to her two close friends as her husband, and that she told a couple other fiends she was married.

3. Evidence that man only told a few friends he was married, and no evidence that wife had ever done so.

A "common law" marriage begins at the first date that all three of the elements are met, and will last until the parties either divorce each other, annul the marriage, or by the death of one party. an informal marriage has the same legal effect as a formal or ceremonial marriage with regards to the divorce court being able to divide the assets accumulated during the common law marriage. In order to have a court declare that there is a valid "common law" marriage, a divorce case must be filed in the family law courts in your county. The family law court will decide whether there is enough evidence to prove the "common law" marriage, and once the court rules there is a valid marriage, the court will then divide the assets and debts accumulated in the marriage in a just and right division of the estate.

If you are involved in a common law marriage and your spouse is denying that your marriage exists, you need to quickly contact a family law attorney to discuss your situation. A suit to prove an informal marriage must be filed within two years of the last date the couple resided together. Failure to bring the suit in that two year period of time waives the ability to file a divorce on the marriage.


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Here at Slate & Associates, Attorneys at Law​, we offer a full range of family law and legal services including divorce, paternity, adoption, child custody and visitation issues, child support, spousal support, juvenile, domestic violence, property division grandparent visitation and custody, etc. We have 3 Houston area locations including Deer Park, Houston, and Porter, Texas. Call our offices today and we can set an appointment with an attorney: (281) 407-9254.


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Please note, the attorneys at Slate & Associates, Attorneys at Law, are only licensed to practice in the state of Texas, and cannot assist with out-of-state cases.