Today’s question: are you married?
Short answer: yes, if you went through a marriage ceremony conducted by an authorized person and received a valid marriage license, never divorced, and your spouse is still alive. That is called a formal marriage.
So is that the only answer, meaning that if you do not have a formal marriage, then you are not married? Of course not; the law is never that simple. You could have an informal marriage, otherwise known as a common-law marriage. Let’s find out if you are common-law married by taking this simple quiz.
Are You Common-Law Married?
Question 1: Are you at least 18 years old?
Question 2: Did you agree with another person to be married? Before you answer, you should know a few fun facts. The agreement does not have to be in writing. It can be proven through circumstantial evidence, such as living together or representing to others that you are married. It can be based only on the other person’s testimony that an agreement existed.
Question 3: After agreeing to be married, did you and the other person live together in Texas as spouses? This is known as cohabitation. There is no bright-line test on how long you must cohabitate, but living together must be more than just frequently staying overnight at the other person’s place.
Question 4: Did you hold out to the public in Texas that you were married? Holding out can be shown by the conduct of you and the other person, such as addressing each other as spouses or signing documents as spouses. An occasional reference to the other as a spouse is not enough. Both of you must have represented yourself as being married. The holding out must be in public because there is no such thing as a secret common-law marriage in Texas. The holding out must also be in Texas. Telling people in New Mexico that you are married doesn’t count.
On an unrelated note, does anything you do in New Mexico count?
Back to the quiz – did you answer “yes” to all 4 questions? If so, you have an informal marriage.
If you answered “no” to questions 2, 3 or 4, let’s go another step and look at the probate angle. This is where it really gets interesting.
If you were dead, could that other person make a credible claim that the two of you were married to each other? After all, you wouldn’t be around to dispute it.
Without your testimony, how could that happen? Your alleged spouse could pull in some “friends” to testify that you both always talked about how happy you were to be married. You put something in writing, such as a Valentine’s Day card addressed to the other person as “My loving wife/husband/spouse.” You listed the other person as a spouse at your place of employment so they could qualify for health insurance. One of you adopted the other’s last name. You listed yourselves in an HOA directory as “married” to keep up appearances. You both wrote on a napkin during a bar tequila tasting that you were married. You signed a formal statement that you were married.
These are all facts that would go into the litigation soup when the issue of common-law marriage goes to trial.
What would be the reward for proving a common-law marriage after your death? Prestige, power, statutory protections, relevance and half of your assets.
Are you married? Think carefully before you answer.
Hammerle Finley Can Help
Are you looking for legal assistance? Schedule a consultation with one of the experienced attorneys at Hammerle Finley to discuss your options.
Attorney Virginia Hammerle is board certified in Civil Trial Law. Her practice includes estate planning, guardianship, probate, and litigation. Sign up for her newsletter at legaltalktexas@hammerle.com.
