Many people misunderstand common-law marriage, and assume that living with someone for a certain amount of time makes them legally married. However, for a couple to actually be common law married requires specific legal criteria to be met, which can be difficult, expensive, and time-consuming. Many people don’t understand the legal nuances that separate it from traditional marriage.
While common-law marriage affords couples many of the same rights and responsibilities as the more conventional path, each state differs in how they treat common-law partners. Further, it is risky to assume you are in a common-law marriage based on the time you have been together or any other misconception about what makes a common-law marriage legal. Only 10 states currently recognize common-law marriages, and each has different requirements that dictate when they should be recognized. Understanding the difference between common-law marriage and traditional marriage in Texas can help you understand and protect your rights.
Covered in this Blog:
- Traditional Marriage in Texas
- Legal Requirements for a Traditional Marriage
- Common-Law Marriage in Texas
- Challenges in Proving Common Law Marriage
- Traditional Marriage vs. Common-Law Marriage: Key Legal Differences
- Importance of Marriage in Estate Planning
Traditional Marriage in Texas
Traditional marriage, or ceremonial marriage, is the primary means of getting married in Texas. This type of marriage is traditionally linked to wedding ceremonies. But a ceremony alone does not make a marriage legal. Instead, the couple must satisfy several requirements before the state recognizes their marriage.
Legal Requirements for a Traditional Marriage
- The couple must obtain a marriage license. by following the necessary steps to get your marriage license, and having it executed by the county clerk.
- A wedding ceremony must take place within 90 days of obtaining the marriage license. The ceremony does not have to be large, and Texas does not require witnesses.
- The ceremony must be conducted by an authorized person under Texas state law, such as:
- Licensed or ordained Christian ministers and priests;
- Jewish rabbis;
- Officers of any religious organization authorized by the organization to conduct a marriage ceremony; and
- Currently serving or retired judges.
Once the ceremony is complete, the officiant who conducted the ceremony must return the marriage license to the county clerk.
Common-Law Marriage in Texas
Common-law marriage has a different set of requirements and is much harder to establish than most people think. Living together for an extended period is not enough to create a common-law marriage.
Currently, there are two ways for a common-law marriage to be officially recognized in Texas.
- The couple can file a Declaration of Informal Marriage with a county clerk. You must provide a proof of identity and pay the filing fee. Once the paperwork is filed, the common-law marriage is officially and legally recognized.
- The second method to becoming common law married, if a declaration is not filed is by meeting these three legal requirements.
- The couple must agree they are married;
- The couple must live together in Texas as husband and wife; and
- The couple must hold themselves out to the public that they are married.
Challenges in Proving Common-Law Marriage
Proving the three elements of common-law marriage can be extremely difficult and expensive. Establishing that the couple lived together as husband and wife in Texas and held themselves out as married often requires gathering testimony from friends, family, or colleagues about the nature of the relationship, which can be an intrusive process. Determining whether there was a mutual agreement to be married relies on any available physical direct documentation, or circumstantial evidence such as tax returns, witness statements, financial records, estate planning documents, or any other relevant proof of a marital connection. When attempting to prove a common-law marriage after one spouse’s death, testimony from the surviving spouse alone is not sufficient and is typically disallowed.
Traditional Marriage vs. Common-Law Marriage: Key Legal Differences
The most critical legal difference between common-law and traditional marriage is how the marriage is formalized. In Texas, people in a common-law marriage enjoy the same rights and responsibilities as those in a traditional marriage. For example, a common-law couple must undergo the same procedures when getting divorced as people in traditional marriages.
It is also critical to note that a common-law marriage formalized in Texas carries over to other states as if it is a traditional marriage. Many states do not allow common-law marriages to begin in their state, but every state recognizes marriages formed in other states, whether they are traditional marriages or not. However, without a Declaration of Informal Marriage, the Texas marriage might be difficult to prove in another state.
A second critical difference is what it takes to prove that a marriage exists in court. Both traditional and a common-law marriage (if formalized through a Declaration of Informal Marriage) have a paper trail that helps prove the union’s existence. A common-law marriage without a declaration has no such paper trail. Proving the marriage exists will likely involve hard to gather forms of evidence as discussed above.
Importance of Marriage in Estate Planning
Being married or divorced can substantially alter the estate planning process, whether the marriage is common-law or traditional. Spouses have rights and responsibilities regarding how their estate can be distributed upon death. These requirements prevent a spouse from being entirely disinherited by their partner. Further, most marital property is communal and owned jointly by both partners. In many cases, it makes sense for married couples to create an estate plan together. At Robbins Estate Law, we understand the importance of knowing the formalities regarding marriage in Texas. Our firm will work closely with you to develop an estate plan that accounts for your marital status and all the nuances of your estate. We provide a collaborative approach and can help you achieve all your estate planning goals. Contact us today to schedule a consultation.
Kyle Robbins
Kyle Robbins is the founder and sole owner of The Law
Offices of Kyle Robbins. He received his J.D. with honors from the University of Texas School of Law and his B.S. in Food Chemistry and Microbiology from Oklahoma State University.
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