How do I know if I am common law married?
In order to obtain a divorce in Texas, a Court must determine that there is in fact the existence of a marriage. If the parties were not married the “traditional” way and granted a marriage license, then the only way to get a divorce is to prove to the Court that you are common law married.
Texas recognizes informal marriages and the Texas Family Code has a provision which governs the existence of such marriages. There are two ways to prove the existence of a common law marriage, by formal documentation or by evidence presented to a court.
First, the parties may sign a Declaration of Informal Marriage and file it with the County Clerk. Parties must list the date of when they considered themselves married, so a couple may be married for quite some time before they actually file this declaration. If this has been done, an informal marriage has been formed and the parties may get a divorce as if they were married in a formal ceremony and granted a marriage license without having to prove the existence of a common law marriage.
Second, a common law marriage may be proven by the following three factors: the man and woman agreed to be married, lived together in Texas as husband and wife after such an agreement was made and represented to others that they were married. These factors can be proven in a number of ways. The first factor of agreement to be married can be proven through circumstantial evidence or witness testimony. It really is looked at by the courts on a case by case basis. The second factor, living together as husband and wife, is relatively easy to prove. The final factor, holding out to others that you were married, can also be proven by a variety of evidence, including filing taxes as married, listing a party as a spouse on an emergency contact form, or covering a party as a spouse through medical insurance.
If you meet all three of the above factors, you can prove that you are common law married and are able to be granted a divorce.
A caveat to common law marriage – if you believe you are a common law married but have not commenced a divorce action before the second anniversary of the date you separated from your alleged spouse, then Texas courts reputably presume that no marriage was ever entered into. What this means is the burden is on you, the party asking for a divorce, to prove to the courts a marriage exists. You may still be able to get a divorce, but first you must prove to the court that you meet the above factors and are in fact married.