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Defacto Marriage & Cohabitation

A common law marriage (sometimes called a defacto marriage) is a marriage created by cohabitation and agreement, rather than by ceremony & licensing. Many people believe that couples who live together for 7 years or longer have a common-law marriage. This is not true. Only 15 states and the District of Columbia recognize common-law marriages. Texas law recognizes common-law marriage, and there are several criteria that can be used to determine a common-law marriage.

Under Texas law, if you “hold yourself out to be married” by telling the community that you are married, using the same last name, filing joint income tax returns, and calling each other husband and wife, then you can be considered to have a common law marriage. A couple who wants to establish a common-law marriage in Texas can sign a form provided by the county clerk. Most common law marriages, however, have no written agreement. Couples in a common-law marriage must (1) agree to be married, (2) cohabit, and (3) represent to others that they are married.

A commonly asked question is, “How many years must we live together before we are common law married?” In Texas, there is no formal length of time required for cohabitation. You do not need to live together for years, or even one year, to be considered common-law spouses. The determination of a common-law marriage is not based on length of time spent living together. Rather, it can be based on (1) representing to others that you are married, and (2) the nature of the agreement between both partners.

If you choose to end your common-law marriage, then you must follow standard divorce proceedings — even though you never had an official wedding. In Texas, either partner in a common-law marriage has two years after separation to file an action proving that a common-law marriage existed. To obtain a divorce from a common-law marriage, you must go through the same process as traditionally married spouses.

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