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How to Avoid Common Law Marriage in Texas

I Have Been Living with My Partner for Years…How Can I Best Protect against Common Law Marriage Claims?

There are plenty of reasons why people live together: it's cheaper to have a roommate or two, a couple wants to live together but doesn't want to get married, etc. However, in the state of Texas, you have to be mindful of Common Law Marriage. 

What Are the Elements Common Law Marriage in Texas?

For many of us, when we think of marriage, we think of elaborately planned wedding ceremonies. The couple walks down an aisle to a preacher, rabbi, or other religious figure; alternatively, the couple could have a secular ceremony with a judge officiating. Additionally, the couple filed for and received a marriage license from a county clerk. 

However, the State of Texas recognizes informal, or common law, marriage where a couple does not have to obtain a marriage license or have a ceremony. 

According to Tex. Fam. Code 2.401, three elements must be met for a common law marriage to take place:

  • The couple agrees to be married
  • The couple agrees to live together
  • The couple represents that they are a married couple to others--this means telling others they're married or signing a mortgage or other legally binding document together, indicating they're married 

In addition to these basic elements, there are additional requirements for a common law marriage to take place. First and foremost, the couple must have the legal capacity to enter into a common law marriage. This means that they are:

  • 18 years or older (an exception can be made for younger couples if they have consent of the parents)
  • not related to each other
  • are not involved in a marriage to anyone else

How Many Years Do You Have to Live Together for Common Law Marriage to Take Place?

In Texas, there's no specific time you have to live together for a common law marriage to take place. This is a myth that has been created. As long as two partners meet the required elements, they can enter into a common law marriage. 

Does Having Kids While Living Together Automatically Make a Couple Common Law Married?

No. This is another common myth. Again, the State of Texas looks for a couple who meets the three elements listed above. 

Ways to Avoid Common Law Marriage Claims

One of the first things to be careful of is signing documents or legally binding contracts. If you and another person, whether you're a couple or not, decide to buy or lease a house, make sure you do not sign anything that contains language indicating you're a married couple. 

Examples of this are:

  • The use of Mr. and Mrs.
  • anything mentioning husband and wife
  • mentions of married couple 

This goes for credit applications too.

Additionally, you should make sure that you continue to sign tax documents individually rather than jointly. To further prove your finances are separated, it's recommended that you don't open joint banking accounts or credit lines. 

Lastly, make sure that you are careful about how you refer to your relationship on social media. Make sure you don't represent yourself and who you live with as a married couple. 

File a Cohabitation Agreement

As one can imagine, this type of litigation is fact intensive, costly, and time consuming. If an unmarried couple is contemplating living together, it would be extremely wise for that couple to enter into a written cohabitation agreement. This cohabitation agreement can clearly define each parties’ specific responsibilities for contributing to the household and, to an extent, each other. Even though there is not a specific statute that addresses cohabitation agreements, Texas allows parties to voluntarily enter into binding, contractual agreements.

A carefully drafted cohabitation agreement can avoid allegations of a common law marriage should a couple later decide to separate. Cohabitation agreements can be tailored to your individual needs and circumstances and can even include language that until an identifiable ceremonial marriage takes place, the parties agree that they are not married to each other and expressly disclaim that they are “common law married.”

If you are contemplating living with your girlfriend or boyfriend, a consultation with an attorney familiar with drafting cohabitation agreements can save you a great deal of money and headache down the road.

If you are considering a Texas cohabitation agreement, the attorneys at Justice Law Firm, PC would be happy to assist you.

The Justice Law Firm in Southlake, Texas is dedicated to helping individuals in Southlake and the surrounding areas with Divorce and Family Law issues. At the Justice Law Firm, you will find experienced and professional divorce attorneys.

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