Texas law, explained
The short answer
Texas recognizes common law marriage, which the Family Code calls informal marriage. Under Texas Family Code § 2.401, a couple is married if they agreed to be married, then lived together in Texas as spouses, and told others they were married, or if they signed a declaration of informal marriage. Living together alone, for any number of years, is not enough. A proven informal marriage ends only by divorce. John B. Polk, a Dallas family lawyer, handles both sides of these claims.
How common law marriage works in Texas
Texas allows two ways to prove an informal marriage under Texas Family Code § 2.401. The first is a signed declaration of informal marriage, a sworn form filed with the county clerk. The second is proof of three facts that all have to be true at the same time.
- The two of you agreed to be married, meaning a present agreement to be spouses, not a plan to marry someday.
- After that agreement, you lived together in Texas as spouses.
- In Texas, you represented to others that you were married.
Living together does not by itself make a couple married. There is no minimum time. A couple can meet all three elements in a short period, and a couple can live together for decades without ever meeting them. The law also sets limits: a person under 18 cannot be a party to an informal marriage, and a person who is still married to someone else cannot enter one (§ 2.401(c) and (d)).
What decides a common law marriage dispute
The agreement to be married is usually the contested element. Couples rarely write it down, so courts look at what the partners said and did. Evidence that often matters includes:
- Joint tax returns filed as married, or insurance and benefit forms listing a spouse
- Leases, loan applications, deeds and bank accounts describing the couple as married
- How the couple introduced each other to family, friends, employers and doctors
- Texts, emails, cards and social media posts using words like "my husband" or "my wife"
- Rings, a shared last name, and the testimony of people who knew the couple
Evidence against a marriage counts just as much, and it is how a false claim is challenged: separate tax returns filed as single, forms signed as "unmarried," or a history of telling people you were only dating. The partner claiming the marriage carries the burden of proving every element. Time matters too. Under § 2.401(b), if a case to prove the marriage is not filed before the second anniversary of the date the couple separated and stopped living together, the law presumes there was no agreement to be married. That presumption can be overcome with evidence, but it makes the claim harder.
When one partner denies the marriage, the court decides whether it existed before it reaches property or support. John prepares that question with the same care as a trial, because everything else in the case depends on it.
Ending a common law marriage: divorce, property and support
Texas has no separate "common law divorce." If the marriage is proven, it ends the same way any Texas marriage ends: through a divorce case and a signed decree. Walking away does not end it, and a spouse who later remarries without a divorce risks a void second marriage.
In that divorce, property acquired during the marriage is presumed to be community property and is divided in a way the court finds just and right. The date the marriage began becomes important, because it decides which assets were acquired during the marriage. Spousal maintenance, child custody and child support follow the ordinary rules. See divorce in Dallas and property division for how those parts work.
If the court finds there was no marriage, the partners are treated as two single people. Property generally belongs to whoever owns it by title or contract, and claims between unmarried partners depend on contracts, joint ownership or other civil law, not the divorce rules.
How John B. Polk helps on either side of the claim
John B. Polk has practiced family law in Dallas for more than 25 years and represents women and men. In a common law marriage case, he can represent the partner who says a marriage exists or the partner who says it never did.
- Reviews the documents, messages and witnesses to judge how strong the marriage claim is
- Builds the evidence of the agreement, the shared home and the holding out, or the evidence against it
- Works with valuation experts, forensic accountants and CPAs when a business or investments are at stake
- Handles the case through negotiation, mediation or trial, and prepares it as if it will go to trial
If your partner claims a marriage you deny, protecting your assets starts with records: tax returns, benefit forms and leases showing how you described the relationship, and proof of what you owned before it. Moving or retitling property after a claim is raised can look like hiding assets, so get advice first.
Many of these disputes settle once both sides see the evidence, often in mediation. Couples who want to avoid the question in the future can put their understanding in writing, either a statement that they are not married or a marital agreement if they are.
What happens when you hire John
- 1
Consultation
You tell John how the relationship worked and what you need. He explains how Texas Family Code § 2.401 applies to those facts.
- 2
Evidence review
John gathers the tax returns, leases, accounts, messages and witness names that prove or disprove the marriage. He tells you where the case is strong and where it is weak.
- 3
Filing or response
John files the divorce or the claim, or answers one filed against you, and asks for temporary orders where property or children need protection.
- 4
Settlement or trial
John negotiates or mediates while preparing for trial. If the case does not settle, he presents the evidence to the court.
I highly recommend John for anyone going through a divorce. He was always available to give advice and strategize. I interviewed many firms big and small but chose John because of his experience and personal touch. He was very responsive. I felt like he was truly invested in making sure that I had the best outcome possible, and I believe that I did. Call John if you want a great lawyer who treats his clients like family.
Questions people ask
Are we legally married if we've lived together for ten years in Texas?
No, not because of the time alone. Texas has no rule that turns years of living together into a marriage. You are married only if you also agreed to be married and told others in Texas that you were married, or signed a declaration of informal marriage. Ten years of shared life can be strong evidence of those facts, but it does not replace them.
How does common law marriage work in Texas?
Texas recognizes it as informal marriage under Texas Family Code § 2.401. A couple is married if they agreed to be married, then lived together in Texas as spouses, and represented to others that they were married, or if they signed and filed a declaration of informal marriage. Once proven, it is a full marriage with the same rights and the same divorce rules.
Does living together automatically make us married?
No. Living together is only one of three elements, and it does not create a marriage by itself. Without a real agreement to be married and holding yourselves out as married in Texas, partners who share a home stay legally single.
What proves a common law marriage in Texas?
A signed declaration of informal marriage proves it most directly. Without one, the evidence must show the agreement to be married, living together in Texas as spouses, and telling others you were married. Courts look at joint tax returns, forms listing a spouse, how you introduced each other, rings, a shared name, messages and the testimony of people who knew you.
What if my partner denies we were common law married?
Then the court decides whether the marriage existed, based on the evidence each side presents. You carry the burden of proving the three elements. If more than two years have passed since you separated and stopped living together, Texas law presumes there was no agreement to be married, so it helps to act promptly and gather documents early.
Can I challenge a false common law marriage claim?
Yes. You can deny the marriage in the case and present evidence that one of the elements is missing, such as separate tax returns filed as single, forms signed as unmarried, or friends and family who knew you as a dating couple. If the claim is filed more than two years after you separated, the law presumes there was no agreement to be married, and the other side must overcome that presumption.
Do I need a divorce if we were common law married?
Yes. A proven informal marriage ends only by divorce, annulment or death. Moving out does not end it, and remarrying without a divorce can make the new marriage void.
Do common law spouses have the same property rights as married couples?
Yes, once the marriage is proven. Property acquired during the informal marriage is presumed to be community property and is divided in the divorce like any other marital estate. The key difference is that the start date of the marriage may itself be disputed, and that date decides what counts as community property.
How do I protect assets if my partner claims we're common law married?
Start by gathering the records that show how you described the relationship, especially tax returns, insurance and benefit forms, and leases. Keep separate property records that show what you owned before the relationship or received by gift or inheritance. Talk to a family lawyer before moving or retitling assets, because that can look like hiding property if a marriage is later proven.
Who handles common law marriage disputes in Dallas?
In Dallas County, the family district courts hear these cases when they come up as divorces or property disputes between partners. Look for a family lawyer with real trial experience, because whether the marriage existed is a factual fight. John B. Polk is a Dallas family lawyer with more than 25 years of practice who handles these claims for women and men. Contact the office to talk about your situation.
Does filing taxes together prove we're married?
Not by itself, but it is strong evidence. To prove an informal (common-law) marriage in Texas, you must show that you agreed to be married, then lived together in Texas as spouses and represented to others that you were married (Texas Family Code § 2.401). A joint tax return signed as a married couple is evidence of representing yourselves as married, and courts weigh it with everything else, such as how you introduced each other, leases, insurance forms and how you signed other documents. Returns filed as single cut the other way.
Guides on this topic
AgreementsAre We Common Law Married in Texas? How It Is ProvedLiving together, a house or children do not make a Texas couple married. Here is what does, and the evidence courts look at.
AgreementsEnding a Common Law Marriage in Texas: Divorce, Property, SupportA proven common law marriage ends only by divorce. Here is what happens to property, support and business interests, and why timing matters.