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Common-Law vs. Traditional Marriage in Texas

Many people have a vague idea about common-law marriage, but few 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.

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.

The first requirement is that a couple must obtain a marriage license. After going through the steps to get your marriage license, the county clerk must execute that marriage license.

Once the clerk executes and issues the license, the couple must have a wedding ceremony within 90 days. The ceremony does not have to be large. In fact, there is no witness requirement in Texas. The only requirement for the ceremony is that it must be conducted by an authorized person under Texas state law. People authorized to perform a wedding ceremony include:

  • 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. Living together for an extended period does not create a common-law marriage. Currently, there are two ways for a common-law marriage to be officially recognized.

First, the couple can file a Declaration of Informal Marriage with a county clerk. You must bring proof of identity and pay the filing fee for this document. Once the paperwork is filed, the common-law marriage is complete.

The second method is slightly more complicated and risky. There are three requirements for the relationship to be recognized as a common-law marriage. 

  • First, the couple must agree they are married;
  • Second, the couple must live together in Texas; and
  • Third, the couple must present themselves as married to other people. 

It is easy to see how hard these three elements might be to prove if there is a dispute over the marriage later on.

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 witness testimony, financial information, and other evidence.

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.

Author Photo

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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