Living together is a popular precursor or alternative to marriage. Cohabitating couples often believe that an unmarried relationship offers a divorce-free dissolution option. What live-in partners may not realize is they already may be married under Texas law.
Nine states, including Texas, recognize common law marriage, according to the National Conference of State Legislatures. A couple in Texas may have an informal marriage without realizing it. Much depends on how the partners view the relationship and act when they live together.
The Texas Family Code acknowledges a common law marriage between partners who declare they are married through registration at a county courthouse. Alternatively, a pair who agrees to be married, cohabits and represents themselves publicly as a married couple is also considered married by the state.
In 1995, the state code was updated to allow common law married partners to separate without divorce. As long as neither "spouse" tries to force a proof of marriage in court within two years of separation, the relationship is viewed as though the couple never married.
A judge may recognize marriage if a former partner's name is listed as a beneficiary or if the couple boasted of marriage to friends and family members. In other words, acting like a married couple could mean you are married. When there is a declared marriage, a couple's split is no longer a matter of separating coffee cups. Common law marriages end the same way other marriages do -- through divorce.
A divorce allows individuals to claim marital benefits. The legal division of assets, estates and spousal support payments that are not applicable to cohabitating couples become possible through divorce. In that case, the burden of proof that a marriage exists is placed on the partner who states it is real.
Whether traditionally married or common-law married, couples wanting to split and divide assets should consult with experienced family law attorneys, who know the law and can work toward a settlement.
Source: The Huffington Post, "When Does Cohabitation Become A Common Law Marriage?" Edra J. Pollin, Jan. 5, 2012