Texas is one of the dwindling number of states that continue to recognize the informal or "common law" marriage. Basically it works this way: if you act like you are married, the state could consider you married even if you never got a license to marry or had a marriage ceremony.
The issue of common law marriage usually comes up when one party is faced with a petition for divorce and there are property issues to be decided. If there are no property issues to divide, there has been no formal marriage, and neither party wants to be married, it is usually just best to follow the KISS principal and "fagetaboutit".
In those cases where one side is trying to claim some property interest from a "martial estate", the first issue your attorney must deal with is: "was there a marriage?"
Under the Texas Family Code, you can have a court declare that a marriage exists if you can produce a written declaration of marriage signed by both parties. I can't imagine a real life scenario where this would happen, but if you can think of one, then I'd love to hear about it. I mean, afterall, if you went through the trouble of drafting a "declaration of marriage" wouldn't you just get a marriage license?
The much more "common way" for a "common law" marriage is covered under TFC 2.401(a)(2). In it the following elements must be met for an informal marriage to exist:
Usually the last element of "represented to others that they were married" is the element that is contested. Evidence of a holding out to the public that you are husband and wife is usually the thing that requires a collection of evidence- one way or the other.
Remember that once established, the "common law" marriage is just a binding and valid as the formal, ceremonial kind.
UPDATE: SAME SEX COMMON LAW MARRIAGES
An interesting new twist on this topic is how the recent Supreme Court Case on Gay Marriage affects Texas Common Law Marriages. The language of the Texas Statue clearly states that a common law marriage is only recognized between a man and a woman. With the Supreme Court declaring such distinctions as unconstitutional, where does that leave Texans who claim a common law marriage? Some legal experts claim that the Supreme Court case merely strikes the language out of the Texas Family Code that includes language that restricts it to a "man and a woman". Many other commentators however have declared that the entire Texas Law on Common Law Marriage is struck down by the Supreme Court case. If that is true that means that thousands of Texans who thought they were married under common law are no longer married! This very issue is being taken up by Federal Courts in Texas and we will have to wait on the results.
You have been through the wringer. Your divorce is final at last and your are emotionally exhausted. All you want to do is to settle into your new life in peace and begin to pick up the pieces, right? Well, my job often makes me the bearer of bad news. And the bad news here is that the end of your divorce is only the end of the beginning. If you want to get off on the right foot in your new life, there is much yet to be done to ensure that you are on the best legal and financial footing.
Here are the top ten things you need to do after you leave the courtroom.
1. Review your financial goals.
No matter what the outcome of your case, your income and expenses have certainly changed. It is time to have a look at your cash flow. Review your divorce decree and write down those items that will regularly affect your budget. Consider all your new or changed sources of income (including child support or alimony if you are to receive that) and all your new or changed expenses (including child support or alimony if you have to pay that).
2. Change your bank accounts.
If you have any joint financial accounts make sure you go to your institution and make the necessary changes to take your former spouse off the accounts you have been awarded in the decree- or safer still, close the old accounts and open new once if that is convenient. It may also save you time to call ahead and speak with the bank to make an appointment and ask what you need to bring. A certified copy of your divorce decree will almost certainly be needed.
3. Update your IDs.
If you were granted a name change in the divorce, get a new Driver's License, Social Security Card, passport, credit cards, etc. It will take a lot longer than you think to go through all this bureaucracy, so start early.
4. Transfer Titles.
Get the legal title put in your for the assets you were awarded in the divorce such as the house, your car, boat, etc. Your decree should order your former spouse to cooperate in signing off on these things- if he or she hasn't already. Do this now while it is fresh in everyone's mind. You don't want to have to track down your Ex years from now to get their signature when you are trying to sell the asset.
5. Get Retirement Accounts Transferred.
If you were awarded any part of your ex-spouse's retirement, pension, 401(k), or other benefit, you have to actually get the funds transferred to your account. This is often a complicated process involving a thing called a Qualified Domestic Relations Order ("QDRO"). This can take upwards of a year in some instances and you will definitely need the assistance of your lawyer or financial adviser for this one- so get the process started early.
6. Ensure you are Insured.
For health insurance, get COBRA or private health insurance. For life insurance, if you have to pay child support or alimony or any other payout, make sure you buy at least enough to cover that amount. Also, make sure you update the beneficiaries on your policies.
7. Secure your Social Security.
If you were married 10 or more years to someone who earned much more than you, you should consult with your attorney or financial professional. You may be entitled to up to 50% of your ex-spouses Social Security Retirement Benefit if that would be more than 100% of your own benefit. Don't wait until you are 62 to ask about this- you might forget.
8. Refinance that Mortgage.
If you got the house, you may have to refinance the mortgage and take your spouses name off of it. This is a good time to shop around for better rates and terms.
9. Plan for The END.
You absolutely should update your Will and any Trusts you have. If you never had a will, now is the time. Everyone should have at least a simple will, especially if you have children. If you have minor children, you should consider setting up Trusts for them, and if applicable, think about your guardianship choices should you pass before they grow up. Your attorney should be able to steer you in the right direction on how to get these things done.
10. Take Stock.
Now that the fury of the divorce is over, you will finally have a moment to really THINK and PLAN. Run off to some exotic location for some serious alone time. I recommend getting out of your normal settings so you can see the world with a fresher perspective. It is time to navigate a new course for yourself. Think of possibilities. Even if you didn't want the divorce, it can be a new beginning for you. Rebuild your life. Make it a Better One.
Your divorce has been punishing and exhausting. But there are many things yet left to do. Like a Marathon runner in the last mile, you have got to dig deep and find the strength to finish..and if you do, you will finish as a winner.
For more information about this or any other topic related to divorce and family law, you can visit our website at www.mydivorcefirm.com.
Attorney Sean Y. Palmer has over 19 years of legal experience as a Texas Attorney and over 25 years as a Qualified Mediator in civil, family and CPS cases. Palmer practices exclusively in the area Family Law and handles Divorce, Child Custody, Child Support, Adoptions, and other Family Law Litigation cases. He represents clients throughout the greater Houston Galveston area, including: Clear Lake, NASA, Webster, Friendswood, Seabrook, League City, Galveston, Texas City, Dickinson, La Porte, La Marque, Clear Lake Shores, Bacliff, Kemah, Pasadena, Baytown, Deer Park, Harris County, and Galveston County, Texas.