In Texas, common law marriage, also referred to as “informal marriage,” is legally recognized under certain conditions. A common law spouse in Texas can enjoy many of the same legal rights as those in a formal, registered marriage. However, understanding the entitlements and protections that come with common law marriage can be complex. In this article, we will explore what a common law spouse is entitled to in Texas, including rights related to property, support, and inheritance.
What Is Common Law Marriage in Texas?
Before discussing what a common law spouse is entitled to, it’s important to define common law marriage in Texas.
A common law marriage exists when a couple agrees to be married, lives together as a married couple, and presents themselves to the public as married. Texas law does not require a ceremony or marriage license to establish such a relationship, but certain criteria must be met for the marriage to be legally recognized.
Requirements for Common Law Marriage in Texas
Under Texas Family Code Section 2.401, a common law marriage is formed when the following three conditions are met:
Agreement to Be Married: Both parties must have a mutual agreement or declaration that they are married, even if no formal ceremony takes place.
Cohabitation: The couple must live together in Texas as a married couple.
Holding Out to the Public: The couple must represent themselves as married to others. This can be done by using the same last name, filing joint tax returns, or referring to each other as husband and wife in public.
If these criteria are met, the couple is considered to have a common law marriage, even if they never obtained a marriage certificate or participated in a formal wedding ceremony.
How Does a Common Law Marriage Differ from a Formal Marriage?
The primary difference between a common law marriage and a formal marriage in Texas is the way they are established. While a formal marriage requires a ceremony and a marriage certificate, a common law marriage relies on the couple’s actions, intentions, and representation to others. In both cases, however, the legal rights and obligations are nearly identical.
Legal Rights and Entitlements of a Common Law Spouse in Texas
Once a common law marriage is established, the legal rights and entitlements of a common law spouse in Texas are similar to those of a formal spouse in a traditional marriage. These rights include property rights, alimony, healthcare benefits, inheritance rights, and more.
Property Rights: Division of Property in Divorce
A common law spouse in Texas is entitled to property rights upon the dissolution of the marriage, whether through divorce or separation. Texas is a community property state, meaning that property acquired during the marriage belongs equally to both spouses, unless it was acquired as separate property.
Community Property: If the couple separates or divorces, any property acquired during the common law marriage is generally considered community property and must be divided equally. This includes real estate, personal property, financial assets, and other acquisitions.
Separate Property: Property that was acquired before the marriage or through inheritance or gifts is considered separate property and is not subject to division during divorce. The burden of proving the separate nature of property falls on the spouse claiming it.
Alimony and Spousal Support
Texas law does not automatically entitle a common law spouse to alimony or spousal support after a separation or divorce. However, there are certain circumstances under which one spouse may seek financial support from the other.
Spousal Maintenance: Texas law allows for spousal maintenance (alimony) only in limited situations. The spouse seeking support must prove that they are unable to support themselves and meet their needs. A common law spouse may qualify for spousal maintenance if they can demonstrate that the marriage lasted for at least 10 years or if they have a disability that prevents them from working.
Temporary Support: In cases where the couple is in the process of divorce or separation, a spouse may seek temporary support during the legal proceedings.
Inheritance Rights
In Texas, a common law spouse has inheritance rights, but these rights are not automatic. Unlike a legally married spouse, a common law spouse does not automatically inherit property if the other spouse dies intestate (without a will). To ensure inheritance rights, it is essential for a common law spouse to be legally recognized by the courts and for both parties to have a clear understanding of their marital status.
Intestate Succession: If a common law spouse is not formally recognized in a will, they may still be entitled to a portion of the deceased spouse’s estate under Texas intestate succession laws, but this can be complicated. It is often necessary to go through probate to establish the validity of the common law marriage.
Wills and Estate Planning: To avoid confusion or disputes, common law spouses should ensure that they have their own estate planning documents, such as a will or trust, that clearly designate their spouse as a beneficiary.
Healthcare and Insurance Benefits
A common law spouse may be entitled to healthcare and insurance benefits under their spouse’s employer-provided benefits plan. However, to access these benefits, the couple must meet the criteria for common law marriage as established by Texas law.
Eligibility for Insurance: Employers may require proof of a common law marriage before adding a partner to health or other insurance plans. Documentation such as joint tax returns, joint bank accounts, or other forms of proof may be needed.
Access to Healthcare: Common law spouses can also make medical decisions for each other in the event of an emergency or incapacitation, just as a married spouse would.
Child Custody and Support
In cases involving children, common law spouses in Texas are entitled to the same rights and obligations as married couples. Both parties have the right to seek custody and visitation and are obligated to provide financial support for their children.
Custody: The court will determine custody based on the best interests of the child, regardless of whether the parents are in a formal or common law marriage.
Child Support: Both common law spouses have the obligation to support their children financially, and the court may order child support based on the parents’ financial capabilities.
Tax Benefits and Filing Status
Common law spouses in Texas can file taxes as a married couple, allowing them to take advantage of tax benefits such as filing jointly and claiming tax deductions for married couples. To file jointly, they must meet the requirements for common law marriage and be able to prove their marital status.
Filing Status: If the common law marriage is legally recognized, the couple can file taxes as “married” and potentially qualify for tax breaks available to married couples.
Tax Deductions: Common law spouses may also be eligible for deductions, credits, and exemptions that are available to legally married couples.
Challenges in Proving a Common Law Marriage
While the legal rights and entitlements of a common law spouse are extensive, proving that a common law marriage exists can sometimes be challenging. There may be disputes over whether the couple ever agreed to be married or whether they held themselves out as married to others.
Legal Process for Proving Common Law Marriage
If a common law spouse wishes to assert their rights (e.g., in divorce, inheritance, or property division cases), they may need to prove the existence of the marriage in court. This can be done through:
Affidavits: Sworn affidavits from the couple or others who can testify that the couple held themselves out as married.
Documents: Joint tax returns, joint bank accounts, utility bills, or other documents showing the couple lived together and represented themselves as married.
Testimony: Testimony from friends, family, or colleagues who can confirm that the couple presented themselves as husband and wife.
Disputes and Divorce Considerations
In cases of separation or divorce, a common law spouse must go through the same legal process as a formally married couple. Texas law requires an equitable division of property, which means the couple’s assets will be divided based on fairness, not necessarily equality.
Community Property Division: Common law spouses are entitled to a fair division of property, but if the property is contested or unclear, the court may have to intervene to decide how it will be divided.
Alimony and Child Support: While common law spouses are not automatically entitled to spousal support, they may be awarded it if the court deems it appropriate. Similarly, child support will be handled based on the needs of the children and the financial capabilities of the parents.
Conclusion
In Texas, a common law spouse is entitled to many of the same legal rights and protections as a spouse in a formal marriage. These include rights related to property division, inheritance, healthcare benefits, and child custody. However, proving the existence of a common law marriage can be challenging and may require documentation and testimony to substantiate the claim.
It is important for common law spouses to be aware of their legal rights and seek proper documentation to ensure that they can fully benefit from these rights. In the event of separation, divorce, or death, it is advisable for common law spouses to consult with a family law attorney to ensure that their entitlements are protected.
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