Hidden risks for common-law couples in Texas



Many Texas couples, especially Millennials and older couples, choose a life partner while skipping the wedding ceremony. The reasons vary, but include a desire to save money, avoid family conflict or religious pressure, or sidestep the crippling prospect of future divorce.

In doing so, they trade a well-known set of risks for an entirely different, lesser-known, but equally difficult set of potential problems. Basically, the nature and extent of their property rights at the end of the relationship will depend on whether a marriage exists or not.

Texas has recognized informal or “common law” marriages since the mid-1800s. This recognition has now been extended to same-sex couples, following the 2015 United States Supreme Court ruling in Obergefell vs. Hodges. Therefore, states that recognize de facto marriages must also recognize informal same-sex marriages.

The elements of an informal marriage include (i) a marriage agreement; (ii) cohabitation as spouses; and (iii) representation to others, or “keep out”, as spouses (Tex. Fam. Code Ann. §2.401). These three elements must coexist simultaneously to establish a valid informal marriage. Once established, an informal marriage is considered as valid as a ceremonial marriage, with all the same rights, duties and privileges.

In the event of divorce, Texas law rebuttably presumes that both spouses are entitled to a “just and right” division of the property acquired during the marriage, regardless of who paid for it or on whose behalf the asset is made. or titled (Tex. Fam. Code Ann §7.001). Alternative legal theories for the division of property are much less generous than the “fair and just” standard set out in the Family Code. For this reason, at the end of the relationship, the existence or non-existence of an informal marriage is frequently and fiercely contested, and the burden of proof rests solely on the promoter of the marriage. An unfavorable result can lead to severe or even drastic results.

For example, in high conflict cases, it is not uncommon for one partner to unilaterally lock the other out of the house with little or no notice. The remedies are clear and simple in the context of a divorce. Yet, in the absence of a provable marriage, the evicted party might be required to demonstrate that they have a legal right to remain in the home under another legal theory. These theories include illegal foreclosure, retaliation, constructive expulsion, partition, and trespassing to try the title. The problem with these options is that the mover must establish that there is a property right or that there is a landlord-tenant relationship. If the mover’s name does not appear on the deed or rental agreement, proving either basis can be just as difficult as proving the existence of an informal marriage.

Another risk comes in the form of pension plans. Pensions, 401 (k); IRA; 403 (b); pension plans for teachers, the military and the federal government; stock options; and RSUs are governed by very specific laws that take little account of what Texas law considers a meritorious relationship. (Texas case law defines a meritorious relationship as a cohabitation sexual relationship between two unmarried individuals. See Faglie v. Williams, 569 SW2d 557, 566 (Tex.App. — Austin 1978, short ref.)). Although most federally and state regulated plans allow the plan member to designate another beneficiary without declaring the person as a spouse, they are not necessarily required to do so. Private plans also vary in their requirements. In the absence of an affirmative designation, the alternate beneficiary could find itself without a pension following an unfavorable decision on the issue of informal marriage.

When it comes to other assets, such as cars, bank accounts, art collections, and other types of personal property, the analysis can quickly become granular. Without the benefit of Texas community property laws, the court could first examine title documents, receipts, and other documents to identify the legal owner of each asset. Beyond that, the spouse without property might be forced to pursue even more obscure theories to prove ownership, such as the existence of a partnership, constructive trust, or collection under quantum meruit. ..

The dissolution of an informal marriage through the legal system presents a number of hidden risks for the divorcing couple. However, there are several advanced risk mitigation strategies for couples. They could sign a written declaration of marriage at any time and register it as provided by §§2.402 and 2.404 of the Texas Family Code. Another option is to enter into a written agreement before marriage or after marriage in accordance with the requirements of Chapter 4 of the Texas Family Code, presumably while the relationship is still healthy. But perhaps the best advice we can offer our clients is to take the trip down the aisle after all.

Curtis harrison is a board-certified family lawyer and partner of the law firm GoransonBain Ausley. For the past 27 years, he has worked to help people going through divorce resolve their family law conflict in the least destructive way possible under the circumstances.


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