Texas is one of eight states that still recognizes common law marriage. Dividing up property at the end of a common law marriage is similar to divorces for formally married couples.
Common law marriage
Common law marriage has many of the same benefits as legalized marriage without the traditional license and ceremony requirements. When common law marriages end, the couple must undergo divorce.
For legal recognition as a Texas common law marriage, couples must be at least 18 and not married, agreed with each other to be married, lived in Texas as a married couple and held themselves out to others as being married. Couples may sign a declaration of informal marriage before a county clerk.
Marital and separate property
Married couples have marital and separate property. Marital property is generally any property that a partner acquired or earned during their marriage.
Separate property belongs to one spouse. It usually includes property owned by a spouse before marriage or after legal separation, property acquired during marriage in the name of one spouse and not used for the other spouse’s benefit, gift or inheritances received by one spouse during their marriage, pension proceeds vested before marriage, and some personal injury awards. Couples may also enter a a written agreement designating property as separate.
Texas is the only community property state that recognizes common law marriage. Assets and debts acquired during marriage are joint property and will be equally divided in a divorce.
Texas courts will decide family law matters such as property, child custody and support when a common law married couple undergoes divorce.
Couples must meet requirements for proving a common law marriage such as living together, filing joint taxes, signing documents as spouses, including each other on insurance policies, making joint loan applications, having children together, and holding themselves out as a married couple to others. If couples prove they were in a common law marriage, their property will be divided as if the couple was formally married. Texas community property laws will govern division.
If a judge finds that the house is one spouse’s separate property, that spouse will get the home in the divorce. A judge can also award a share of the home to both spouses. When that occurs, one spouse must buy the other spouse’s share, or the couple will sell the home and divide the sale proceeds.
Couples may also negotiate a property division agreement that addresses their needs and avoids having an order imposed upon them by a judge. Attorneys can help seek a fair and reasonable decree and protect a spouse’s legal rights when their marriage ends.