Proving a Common Law Marriage in Court

In the state of Texas, it’s possible to be married without ever going through the legal, ceremonial process of getting married. This is known as a common law marriage or informal marriage. If you’re able to prove that an informal marriage existed, it carries the same weight as a marriage that began with a conventional wedding—that means that spousal maintenance, property division, and inheritance rights could be on the line. In these complex situations, an Edinburg family law attorney can provide guidance.

At Garza Law Office, PLLC, we advocate for clients facing complex divorce cases—including divorcing a partner in a common law marriage. Attorney Dora Alicia Garza brings experience in a wide range of legal matters to the table, providing the insight needed for your divorce case. Call our family law firm at 956-329-1304 to schedule a consultation now.

What is a Common Law Marriage in Texas?

A common law marriage is defined in the Texas Family Code. There are two ways that a common law marriage may be recognized in this state. First, a couple may file a Declaration of Informal Marriage with the county clerk. Second, they (or one party) may prove that the marriage existed by meeting the statutory requirements under Texas state law.

Elements Needed to Prove Informal Marriage

When no declaration is filed and one party wants to prove that they lived as a married couple, they have to prove that they met (or still meet) all three elements of an informal marriage in Texas:

• Agreement to be married: The couple must have had a mutual agreement to be married. Note that this is different from an agreement to get married in the future. Courts may look at evidence like text messages and emails discussing marriage, statements to family and friends, or social media posts referring to each other as spouses.
• Cohabitation: The couple must also have lived together in Texas as spouses. It’s not enough to prove occasional overnight stays—they must have actually resided in the same place together. Leases or joint property purchases may help prove this element.
• Representation to others: A couple must also represent themselves as married. This can be harder to prove, especially if they represented themselves as married to some people but unmarried to others. Evidence may include shared last names, legal documentation referring to the other as a spouse, insurance policies naming the other as a spouse, or medical records identifying the other party as a spouse.

What Evidence Courts Consider

Common law marriage cases are heavily dependent on the specific facts of each case, which is why we recommend working with a family law lawyer. Judges consider the totality of the evidence, which may include:

• Tax returns, lease agreements, insurance documents, and medical records referring to the other party as a spouse
• Social media posts, text messages, emails, and online status updates indicating marriage
• Testimony from friends, family members, neighbors, and others who believed the couple was (or was not) married

Defenses Against an Informal Marriage Claim

If you’re trying to prove the existence of a common law marriage, it’s important to be aware of common defenses used to invalidate common law marriages. Someone claiming they were never married may claim that:

• There was never an agreement to be married
• They were just living together as a non-married couple
• Taxes were filed separately
• Couple identified themselves as single on legal documents
• Claim was filed more than two years after separation, which means there’s a rebuttable presumption against the existence of a marriage

Your family law attorney can help you prepare in advance for these defenses.

How Do Texas Courts Analyze These Cases?

The burden of proof lies with the person who claims that the marriage existed. The person who claims the marriage never existed may also provide evidence to support their side, but the person asserting the marriage has to demonstrate that it’s more likely than not that the marriage existed.

There’s no one piece of evidence that controls the outcome; courts look at the couple’s donut as a whole and in the context of other pieces of evidence.

This is why legal strategy with a family law lawyer is so important. These cases are emotionally charged and rely heavily on the amount and quality of evidence presented.

Reach Out to Our Edinburg Family Law Firm Today

The family law team at Garza Law Office, PLLC, is here to help you as you navigate the complexities of a common law marriage. Schedule a time to meet by calling us at 956-329-1304 or reaching out online.

Dora Alicia Garza

Dora Alicia Garza is a seasoned attorney based in Texas and the Founder of Garza Law Office, PLLC. She has built a respected practice across multiple areas of law, including criminal defense, family law, personal injury, guardianships & wills, estate planning & probate, immigration, debt defense and juvenile law. Learn more here.