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UNMARRIED AND LIVING WITH YOUR SIGNIFICANT OTHER? TEXAS COMMON LAW MARRIAGE AND COHABITATION.
- Texas Attorney Ryan Putz
- Nov 26, 2022
- 4 min read
Updated: Dec 1, 2022
Same-sex couples, and heterosexual couples alike, are subject to Texas Common Law Marriage after the June 26, 2015 ruling by the United States Supreme Court in Obergefell v. Hodges. [1]
ONE NEED NOT BE CEREMONIALLY MARRIED IN ORDER TO HAVE PROPERTY AND ASSETS BE SUBJECT TO DIVISION THROUGH A DIVORCE PROCEEDING.
In Obergefell, the Supreme Court made it unlawful for a state to refuse to recognize a lawful same-sex marriage.[1] So, the distinction is that a same-sex couple prior to this decision may have met the qualifications as common law married under the Texas Family Code, but unlike heterosexual couples, were barred from a Texas court finding them common law married.
Essentially, many same-sex couples in Texas woke up the morning after the ruling as married in accordance with the Texas Family Code provision for informal (common law) marriage. (See below the next paragraph for the Texas Family Code informal marriage requirements). I think it is fair to say that many same-sex couples established these factors due to the fact that they were not allowed by law to marry, and alternatively, these couples made their own informal marriage to each other -- exchanging rings, sharing finances, celebrating anniversaries, and even referring to each other as spouse, husband, or wife. Click here to learn more about Texas Common Law Marriage.
Now, under the Texas Family Code, same-sex couples and heterosexual couples that have established the elements of common law marriage are vulnerable to the divorce process, which includes a share of all community property and assets acquired during that marriage.
WHAT FACTORS ESTABLISH A COMMON LAW MARRIAGE UNDER THE TEXAS FAMILY CODE? THERE ARE THREE:
1. THE PARTIES AGREED TO BE IN A MARITAL RELATIONSHIP.[4]
An agreement to be married may be proved by circumstantial evidence.[5] The problem is that when people live together, other people often assume they are husband and wife, or in a marital relationship. The cohabiting couple may sign up for things as a marital couple, such as gym membership, bank account, credit card, insurance policy, etc…. This is all circumstantial evidence that supports the finding of an agreement to be in a marital relationship.
2. THE PARTIES COHABITED IN TEXAS.[6]
A common misconception is this requirement must be for a certain length of time. FALSE. This requirement may be established by cohabiting for any length of time, be it one day or 20 years.
3. THE PARTIES HELD THEMSELVES OUT TO OTHERS AS MARRIED.[6]
This is the factor that carries the most weight in Texas courts. If third parties understand your relationship to be a marriage, a court likely will as well.
WHAT IS A COHABITATION AGREEMENT? WHY MIGHT YOU WANT TO HAVE A COHABITATION AGREEMENT?
IT PROTECTS YOUR INTERESTS AND KEEPS THE COURTS AWAY. AVOIDS POTENTIAL LITIGATION IN A DIVORCE SUIT. AVOIDS UNNECESSARY PROBATE.
A common law marriage has the same validity as a ceremonial marriage. Once a marriage comes into being, whether ceremonial or informal, it may only be terminated by death of a spouse or by a court decree declaring the marriage terminated.[3]
Cohabitation Agreements are like a prenuptial agreement for a ceremonial marriage. It lays out how property and financials are handled between a cohabiting couple. Additionally, a cohabitation agreement acts as a legal contract between the parties, establishes the status of their relationship, and prevents the possibility of divorce litigation upon separation of the parties.
Cohabitation Agreements are especially useful when one party has higher net worth or income.
A Cohabitation Agreement may include:
• A “signing bonus” for entering into the agreement.
• Financial obligations – Who is responsible for paying what and when
• Monthly spending budget for expenses
• Pets
• Categorizing Separate and Community Property
Generally, both parties should be at the signing table represented by their own independent attorney. This encourages fairness and enforceability of the agreement.
Keep in mind, if after separation of the parties, one person alleges that they intended to be married and agreed to be in a marital relationship, it will be required for the other person to defend a divorce lawsuit.
In conclusion, if you are living with your significant other, and do not intend to be in a marital relationship, you need to make sure that you are not giving the impression to others - including your significant other - that you are in a marital relationship. On the other hand, if you feel like you meet the factors of a common law marriage -- consult a family law attorney to discuss your options.
[1] Obergefell v. Hodges, 135 S. Ct. 2584
[3] Estate of Claveria v. Claveria, 615 S.W.2d 164
[4] Tex. Fam. Code § 2.401
[5] Russell v. Russell, 865 S.W.2d 929
[6] Tex. Fam. Code § 2.401
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PHONE: (281) 206-2696
EMAIL: ryanputzlaw@gmail.com
Attorney Ryan Putz practices all areas of Family Law, including Cohabitation Agreements, Protective
Orders and Restraining Orders, Divorce, Child-Support, Child-Custody, Spousal Maintenance,
Modifications, Property Division, Prenuptials, and Post-nuptials.
Whether you live in Houston and Harris County, Pearland and Brazoria County, Sugar Land and Fort Bend County, The Woodlands and Montgomery County Attorney Ryan Putz is available for consultation and legal review of your case.
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