The phrase “common law marriage” is often used to describe a couple who has lived together for some time. When they decide to end their relationship, the question comes up about how their parting will legally proceed. Will they participate in a traditional divorce or are there other considerations that will affect the “divorce” process? First it must be proven to the court that there was a common law marriage.
Proving There was a Common Law Marriage
Before determining whether such a couple goes through a traditional divorce, the court must first be convinced that there was an actual common law marriage. Texas law has established a three-pronged test that the couple must meet before the court can hold that there was a common law marriage.
- The couple were in a cohabiting relationship. There is no time requirement for how long they must live together, but there must be proof that they did live together.
- The couple agreed that they were spouses during the time they lived together. This agreement does not have to be in writing but can be verbal. One of them may have simply said one night, “Honey, I consider you to be my spouse,” and the other one agreed to it.
- They held out to the public that they were married. A common law marriage cannot be secret. Others must have known about it. Maybe one party introduced the other as his or her spouse at a party or their friends all thought that they were married.
One of the most difficult things to prove is when the marriage began. It is a fact-driven inquiry and the court will consider all relevant circumstances. How the couple filed their tax returns is highly significant. One party may introduce the other as their spouse, yet file tax returns as a single person. That presents a conflict that the Judge will have to reconcile in order to find that there was a common law marriage.
If the court determines there is a common law marriage, then all issues concerning dissolving the marriage are resolved in the same way as in a traditional marriage divorce case.
If there is no common law marriage, the parties can divide jointly owned property according to contract principles. If they have children together, they may still proceed in court to form a parenting plan and obtain court orders in a Suit Affecting the Parent-Child Relationship.
For More Information About Divorce, Contact an Experienced Dallas Family Law Attorney
To schedule a free initial consultation with a Dallas Family Law Attorney, contact Paula Lock Smyth Law offices at 214-420-1800.
Paula Lock Smyth has practiced law in Texas since 1985, focusing on Family Law, Probate, Mediation, and Collaborative Divorce. She is a trained mediator, seasoned litigator, and one of the early adopters of Collaborative Divorce in Texas. Paula is a member of the State Bar of Texas, the College of the State Bar and the Texas Bar Foundation and has served as Past President of Dallas Lawyers Concerned for Lawyers. She was a Master in the Annette Stewart Inn of Court and is a Charter Member of the Collaborative Law Institute of Texas. Her legal knowledge and decades of experience make her a trusted voice on matters that impact families across Dallas and surrounding counties.