Divorce for Common Law Marriage

December 4, 2018

Why go through getting divorced if you’re common law married? 


Simple, although divorce can be stressful and emotional, it provides protections so neither spouse loses out on what their entitled to because of their commitment to the marriage.  Imagine a couple who was common law married for 10 years.  They may own a house together, have cars, have financially supported one another through tough times, pinched pennies together to save for retirement, etc.  If their relationship fell apart to the point where they decided they were completely done, who’s to say one spouse couldn’t just bully the other spouse into giving them what they want?  Getting a legal divorce prevents that from happening. 


What is common law marriage anyway? 


I remember when I was a kid, I used to hear that you were common law married if you live with your significant other for a certain period of time.  I always thought it boiled down to how long you live together.  These days I find many people I talk to about common law marriage still believe this.  It’s simply not true.  In fact, there is absolutely no time requirement for common law marriage. 


Three things have to be true to be common law married:


(1) You and your partner must agree to be married;

(2) You must hold yourselves out to the world as a married couple; and

(3) You must live together in Texas. 


Each element is equally important, and they must all exist at together at the same time. For instance, if a couple satisfied elements (1) and (2) while living together in another state, then separated while moving to Texas and, therefore, never moved in together in Texas, the couple would not be able to claim common law marriage in Texas. 


How do you prove that you agreed to be married? 


For starters, you have to show more than an agreement to live together now and agree to get married in the future.  Both spouses must agree they’re currently married. 


Things such as filing taxes jointly, referring to one another as wife or husband, wearing wedding rings, and listing one another on life insurance policies can help prove an agreement exists between two people that they’re married.  However, none of these things may be enough to prove common law marriage by themselves.  Likewise, it’s not enough that spouses are living together to test things out and may stick it out if it works but can split up if it doesn’t.  The agreement must show that the parties intended to be married permanently.


It’s also important that the couple refer to one another as their spouse more than occasionally.  A good test for sufficiency is to ask what a new friend of only a few months would think about the relationship status of the couple and why?  Did they hear them refer to one another as their spouse?  Did they see wedding rings?


If you think you were common law married to your partner and are now or recently split up, you might consider a legal divorce if you have assets you would like to protect or if you sacrificed to support your partner while they achieved career success.  If you think a legal divorce may be right for you, contact Kannon at 512-900-6011for a free consultation. 

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