Common Law Marriage in Texas

By E. Stephanie Hebert, Fort Bliss Legal Assistance Office  

Your girlfriend of six months moved out of your apartment over Memorial Day weekend, and this morning a constable served you with divorce papers. You immediately ask yourself, “How can my ex-girlfriend possibly think she’s my wife?”

Usually, when a couple decides to get married, they obtain a license, plan a ceremony, and invite their friends to celebrate with them. Or they go to Vegas. Either way, they end up with a certificate of marriage that proves they are legally married. In Texas, however, a couple can bypass the formalities of a ceremonial marriage and still be legally married.

An informal or common law marriage in Texas can occur in one of two ways:

Option 1: Filing a declaration of common law marriage with the county clerk’s office; or

Option 2: Entering into an agreement to be presently married to another person, and after making the agreement, you live together in Texas, and you represent to others that you are married. All three of these elements must coexist at the same time.

Option 1 is evidenced by a piece of paper, so there is less ambiguity regarding the couple’s intent.

The same cannot be said for Option 2. For example, your ex-girlfriend testifies at trial that (a) you gave her a ring, (b) the two of you actually agreed to be “married” the moment you put the ring on her finger, and (c) you told your closest friends about your “marriage.” If these statements are true, a judge could easily find that you were married pursuant to § 2.401(a) of the Texas Family Code (the informal marriage statute). When it’s your turn to testify, you admit that you gave your ex-girlfriend an engagement ring, but that the gift was made in anticipation of a wedding ceremony that was scheduled to occur in six months. You introduce into evidence the “Save the Date” notice with your future wedding date on it. You also testify that, while you did live together, you never had any intent to be presently and permanently married before the actual ceremony, and you never told a soul that you were husband and wife.

If you’re telling the truth, a judge may find that you were not married. But do you really want to go through the expense of a lawsuit? No. Before you find yourself in this situation, what can you do to dispel any future allegation that you are legally married by common law?

  1. Be honest and disclose to your significant other that you have no intent to marry her/him at this time. If you do intend to marry him/her, set a specific date for a future wedding, and do not take steps to legitimize the relationship until the wedding.
  2. Insist upon maintaining separate financial accounts and credit cards, at least until you become husband and wife.
  3. Never refer to your significant other as your “wife” or “husband” to friends, family or your employer. Do not allow your significant other to do so either.
  4. Sign a cohabitation agreement with your significant other, specifying your intent not to be married.

Informal marriages, just like ceremonial marriages, can only be dissolved through legal proceedings for divorce or annulment, or by death of one spouse. The good news is that, if neither party files a petition to dissolve the “marriage” within two years after your separation, there is a rebuttable presumption that there was no agreement to be married in the first place. That means, after two years, you are probably in the clear.

You can find more information about informal or common law marriage in Chapter 2, Subchapter E, of the Texas Family Code.

If you have any further questions on this topic and want to speak with an attorney, please schedule an appointment with the Fort Bliss Legal Assistance Office by either calling (915) 568-7141 during office hours or emailing anytime.​​​​