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Specialty tag(s): Collaborative Divorce

Hidden Risks for Couples Ending Common Law Marriages in Texas

Curtis W. Harrison | April 15, 2021

Many Texas twosomes, especially among the Millennial and older Gen Z couples, choose a life partner while skipping the marriage ceremony. Reasons vary, but include wanting to save money, avoid family conflict or religious pressure, or bypass the paralyzing prospect of a possible divorce. 

What most of these folks do not realize is that they are exchanging one set of well-known risks for an entirely different, lesser known but equally challenging set of potential problems. At its core, your property rights at the end of the relationship will hinge upon the existence or non-existence of a marriage.

What is Common Law Marriage?

A common law marriage in Texas occurs when a couple lives together, and consider themselves as married – and portrays themselves as such when interacting with friends and family – although they have not gotten a marriage license or participated in a formal ceremony with an officiant.

A Brief History of Common Law Marriage

Marrying without a ceremony was a concept imported from England that quickly took root in the New World and, later, throughout the wide-open West. Preachers and Justices of the Peace were often hard to come by, yet couples living together outside of wedlock could lead to ostracizing the couple, or even violence in those days. Validating the relationship between a husband and wife through an informal, or “common law”, marriage became the preferred solution.

That recognition has now been extended to same-sex couples, following the United States Supreme Court decision in Obergefell v. Hodges. Therefore, states that recognize common law marriages must also recognize same-sex informal marriages.

What States Recognize Common Law Marriages?

Today, a total of nine states recognize common law marriages:

  • Texas
  • Colorado
  • Iowa
  • Utah
  • Kansas
  • Montana
  • New Hampshire
  • Oklahoma
  • Rhode Island

While the legal requirements differ slightly from one jurisdiction to another, the common denominator is that you have to first prove the existence of a marriage to successfully claim property rights and protections that the law automatically provides to married couples.

How Do You Prove the Existence of an Informal Marriage?

What is a common law marriage in Texas? Triggering a divorce court’s obligation to protect your marital property rights in Texas requires you to first prove the following elements:

  1. Both sides agreed to be married;
  2. You lived together in Texas as spouses; and
  3. You represented to others in Texas that you are married.

All three of these elements must have co-existed at the same time for there to have been a valid informal marriage in Texas. Once established, a common law marriage is considered to be as valid as a ceremonial marriage, and all the same rights, duties, and privileges attach for all purposes.

4 Problems Faced in Texas Common Law Marriage Dissolutions

Texas is community property state. This means that, upon divorce, the law presumes that both spouses are entitled to a “just and right” division of property acquired during the marriage – regardless of who paid for it or in whose name the asset is deeded or titled. 

For example, assume that Ward was married to June for 20 years. During that time, Ward worked to support the family while June handled the household duties and the kids’ daily schedules. Upon divorce, the divorce court presumes that the total combined value of the community property (including the house, retirement, investments, small business, cars, etc.) should be divided between Ward and June, regardless of who was directly responsible for acquiring the assets. If Ward and June choose to litigate over the community property, the fight won’t be about who owns it. Rather, it will focus on who should receive a larger share, and why.

Although such a conflict can be expensive, both emotionally and financially, the problems for couples who skipped the wedding ceremony are potentially even more stark:

1. Proving You Are Married After-the-Fact.

Without a marriage certificate or written declaration of marriage, the first challenge in a dissolution proceeding is to prove the existence of the marriage. The issue never materializes while the relationship thrives. Yet the existence or non-existence of the marriage is both frequently and fiercely disputed at the end of the relationship. Parties spend countless thousands of dollars trying to persuade the fact finder that they are (or are not) married.

2. Proving What You Own.

Why would the existence of the marriage ever come into dispute? Put simply, because denying the existence of a marriage works to someone’s financial advantage: If the parties were never married then Texas’ community property laws do not apply. Therefore, the courts don’t divide property in a “just and right” manner. To the contrary, the courts are constrained to award or divide property under quite different, and comparatively draconian, rules. Without exception, this tactic advantages one of the partners at the expense of the other.

For example, without the benefit of Texas’ community property laws, the Courts will first look to titling documents identify the legal owner of the asset. Unfortunately, if your name does not appear on the deed or title, proving ownership rights becomes much more challenging.

You would likely have to resort to more obscure legal theories to recover property you contend rightly belongs to you. Such legal theories include, but are not limited to, partnership, constructive trust, and quantum meruit.

For example, because of bad credit, perhaps your partner purchased your car in his or her name. But you made every single payment for the car. To prove ownership or a claim for reimbursement, you would have to trace the origin of each car payment you made back to your personal income or other source of funds you own.

The same idea holds true for each individual “non-marital” asset that you assert belongs to you. Put simply, you don’t want to have go there.

3. Proving Your Right to Stay in Your Home.

In high-conflict cases, it is not unheard of for one partner to unilaterally lock the other out of the home with little or no notice. The remedies are clear and straight-forward in the context of a divorce: Seek an emergency hearing to right the wrong. But in the absence of a provable marriage, you could find yourself in the position of trying to convince a judge that you have a legal right to continue living in your home. 

If your name does not appear on the mortgage or a written lease, the burden of proof is on you to allege and prove that you have a right to remain in the home. In Texas, several other legal theories are recognized by the courts, including unlawful lockout, retaliation, constructive eviction, partition, and trespass to try title. The problem with these options is that you have to prove either that you have an ownership interest or that a landlord-tenant relationship exists. If you are the untitled spouse in the relationship who is claiming an informal marriage, proving either an ownership interest or a formal landlord-tenant relationship existed can be just as challenging as proving the existence of a marriage.

4. Proving Your Right to A Share in Your Spouse’s Retirement

Retirement plans, such as pensions, 401(k)’s; IRA’s; 403(b)’s; teachers’, military, and federal retirement plans; stock options; and restricted stock units, are governed by very specific laws that make few allowances for what Texas law deems a “meretricious relationship.” (Texas defines a meretricious relationship as a sexual relationship of cohabitation between two unmarried individuals). While most federal and state regulated plans allow the plan participant to designate an alternate payee without declaring the person as a spouse, they are not necessarily required to do so. Private plans also vary in their requirements. The point is, in the absence of an affirmative designation, the alternate payee could be left without any retirements following a contested final trial. 

Put another way, you could live with, support, and even raise the children of a person you consider to be your spouse for 20 years without ever marrying by ceremony. At the end of a divorce trial, however, if the court determines that you were never informally married, it is entirely possible that you will be denied any share of the available retirement benefits held in your partner’s sole name.

Benefits of a Collaborative Divorce When Ending an Informal Marriage

The dissolution of an informal marriage through the judicial system presents a number of hidden risks to the divorcing couple. However, you do have other options. First, consider seeking a formal written declaration of marriage with your spouse if your spouse will agree to do so. Within the declaration, be certain to specify the date that you both originally agreed to become spouses. At a minimum, such a document should satisfy the “agreement” element to establish the existence of the marriage for most judges.

If that is not an option because the relationship has moved beyond the point of no return, consider dissolution options designed to keep the parties out of court, such as the Collaborative Divorce model. While the courts are limited by what the law allows, the Collaborative Divorce approach frees the participants to achieve mutually-acceptable resolutions voluntarily, unencumbered by what a judge can or cannot do.

By design, the process is non-adversarial and focuses on meeting the needs of both individuals, rather than trying to win at the expense of the other. The process works because of the shared interests in transparency, fundamental fairness, privacy, and eliminating the threat of the courthouse.

Working with an Experienced Collaborative Divorce Attorney When Ending a Common Law Marriage in Texas

Collaborative Divorce is a comparatively new, cutting edge method of alternative dispute resolution. Because of this, it is important that you search for a divorce attorney who is both trained and experienced in the model. Although there are many highly competent family law attorneys around the State of Texas, few of them have been formally trained in the Collaborative Divorce model, and even fewer of them have demonstrated sufficient professional experience and commitment to earn either a Credentialed status or Master Credentialed status through the state-wide organization, Collaborative Divorce Texas.

At Goranson Bain Ausley, our attorneys in Dallas, Plano and Austin offer extensive experience in successfully guiding couples through a Collaborative Divorce, as well as traditional litigation, negotiated settlement, and mediation. For more information, contact Curtis W. Harrison at 214-473-9696 to arrange an in-person or virtual consultation about ending a common law marriage in a way that can be constructive, respectful, and efficient for everyone.

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