Common Law Marriage in Texas, Requirements, Legal Rights & How to Prove It
Yes, Texas recognizes common law marriage when three specific requirements are met: the couple agrees to be married, lives together as husband and wife, and holds themselves out to others as married. This type of marriage is just as legally valid as a ceremonial marriage, giving you the same rights to property division, spousal benefits, and inheritance—but proving it can be complicated if challenged.
What Is Common Law Marriage and How Does It Work in Texas?
Common law marriage in Texas, also known as informal marriage or marriage without formalities, is a legally recognized marriage that doesn’t require a ceremony or marriage license. Instead, it’s established through your actions, intentions, and how you present your relationship to the world.
Texas Family Code § 2.401 sets out the legal framework for proving common law marriage. You must show that all three elements existed at the same time: an agreement to be married, cohabitation in Texas as spouses, and representation to others that you’re married.
The Three Requirements for Common Law Marriage in Texas
The agreement to be married doesn’t need to be written or formally stated. Courts look at whether you intended to enter a present, immediate, and permanent marital relationship—not a future engagement or casual understanding. Being engaged to be married in the future is not enough.
Cohabitation means living together in Texas as a married couple would. There’s no minimum time requirement—it could be seven months or seven years. What matters is that you maintain a household together and conduct yourselves as spouses. Evidence like joint lease agreements, shared mortgages, or combined finances strengthens your case.
Holding out as married means publicly representing yourselves as a married couple. This could include introducing each other as husband or wife, using the same last name, filing joint tax returns, listing each other as spouses on insurance policies, or having friends and family who can testify they believed you were married.
How Common Law Marriage Differs from Living Together
Simply living with your partner for years doesn’t create a common law marriage. You could share a home for decades, have children together, and split expenses—but without mutual agreement to be married and public representation as spouses, no common law marriage exists. The law requires affirmative steps showing marital intent, not just cohabitation.
Legal Rights and Responsibilities of Common Law Spouses in Texas
Once established, your common law marriage carries the same legal weight as a ceremonial marriage. You’re entitled to all the benefits and obligations that come with being legally married.
Property Rights and Community Property Law
Under Texas law, all property acquired during a marriage—formal or common law—is community property. This means assets and debts accumulated during your marriage are generally divided equally if you separate, regardless of whose name appears on the title or who earned the income.
If you’re in a valid common law marriage and you separate, you’ll need to go through formal divorce proceedings to divide property. Like those in a formal marriage, couples who want to end a common law marriage must file for divorce. There’s no such thing as a “common law divorce.”
Spousal Benefits and Federal Recognition
Common law marriages recognized in Texas are acknowledged for federal purposes including Social Security benefits, tax filing status, military spousal benefits, and other federal programs. You can file joint tax returns, claim spousal Social Security benefits, and make healthcare decisions for your spouse.
Upon the death of a common law spouse, the surviving partner has inheritance rights under Texas succession law and may be entitled to Social Security survivor benefits, pension benefits, and other spousal protections—provided the marriage can be proven.
How to Prove Common Law Marriage If Challenged
Proving a common law marriage exists can be the hardest part, especially if your partner disputes it. The Texas family law courts scrutinize these cases closely because some people will claim to be a common law spouse for personal financial gain.
Evidence Courts Consider
The burden of proof rests with the person claiming the marriage exists. Courts evaluate your case based on the totality of circumstances. Strong evidence includes:
- Joint tax returns filed as married
- Lease agreements or mortgage documents showing you lived together as spouses
- Joint bank accounts, credit cards, or major purchases
- Insurance policies listing each other as spouse or beneficiary
- Testimony from friends, family, or community members who knew you as a married couple
- Use of the same last name
- Birth certificates listing both parties as married parents
- Documentation showing you represented yourselves as married in legal or official contexts
You can also file a Declaration of Informal Marriage with your county clerk’s office, which creates official documentation of your common law marriage. This form provides strong proof if your marriage status is later questioned.
Time Limits for Proving Common Law Marriage
If two years pass after a common law marriage couple separates and neither party has filed anything to prove the marriage, the state presumes that the marriage never existed. This makes it significantly harder to establish the marriage in court if you wait too long after separation.
Common Law Marriage in Divorce and Property Division
When a common law marriage ends in divorce, the legal process mirrors that of a ceremonial marriage. You’ll address property division under spousal support guidelines, child custody if applicable, and debt allocation.
However, there’s an additional step: the party seeking the divorce must first prove that a valid common law marriage existed. This means gathering evidence to satisfy all three requirements before the court can proceed with dividing assets or addressing support.
What People Get Wrong About Common Law Marriage in Texas
“Living Together for Seven Years Makes You Common Law Married”
This is one of the most persistent myths. Texas law does not require the couple to be together for a specific period of time before they can declare themselves to be in a common law marriage. There’s no magic number of years. You could live together for two decades without creating a common law marriage, or establish one within months if all three requirements are met simultaneously.
“Common Law Marriage Isn’t as Legal as Regular Marriage”
Once proven, a common law marriage has identical legal status to a ceremonial marriage. You have the same property rights, spousal support eligibility, inheritance rights, and federal benefits. The only difference is how the marriage was formed—not its legal validity.
“You Can Just Walk Away from a Common Law Marriage”
To terminate a common law marriage, you must file for divorce. You can’t simply separate and consider the relationship over. Without a formal divorce, you remain legally married, which could affect your ability to remarry and create complications with property rights and benefits.
What to Do If You Think You Have a Common Law Marriage
If you believe you’re in a common law marriage or need to establish one, take these steps to protect your legal rights.
Document Your Marriage
Gather evidence now rather than scrambling later. Collect joint tax returns, lease agreements, insurance policies, bank statements, and any documentation showing you held yourselves out as married. Consider filing a Declaration of Informal Marriage with your county clerk to create official proof.
Understand Your Rights
Familiarize yourself with Texas Family Code § 2.401 and how courts evaluate common law marriage claims. If you’re separating from a common law spouse, consult with a family law attorney to understand your rights to property division, spousal support, and other benefits under Texas community property law.
Act Within Time Limits
If you’ve separated from someone you believe you were common law married to, don’t wait. The two-year window for proving the marriage starts from your separation date. After that period passes, Texas law presumes the marriage never existed, making your claim much harder to establish.
Frequently Asked Questions
What are the three requirements for establishing common law marriage in Texas?
Texas requires proof that you agreed to be married, lived together in Texas as husband and wife, and represented yourselves to others as a married couple. All three elements must exist at the same time to create a valid common law marriage under Texas Family Code § 2.401.
How do you prove a common law marriage in Texas if your partner disputes it?
You’ll need to present evidence showing all three requirements were met. This can include joint tax returns, testimony from friends and family, lease agreements, insurance documents listing each other as spouse, use of the same last name, and any other documentation demonstrating you held yourselves out as married to your community.
Does Texas recognize common law marriages from other states?
Texas generally recognizes common law marriages validly entered into in other states. However, if you move to Texas and your relationship doesn’t meet Texas’s three-part test, your marriage may not be recognized under Texas law.
Can you get Social Security benefits from a common law marriage?
Yes. Common law marriages recognized as valid in Texas are acknowledged for federal purposes including Social Security spousal and survivor benefits. You’ll need documentation proving the marriage existed to claim these benefits.
What happens to property if you separate from a common law spouse?
If a valid common law marriage existed, all property acquired during the marriage is community property under Texas law and will be divided in divorce proceedings. Without proving the marriage existed, each person keeps their individual property and remains responsible for their own debts.
How long does a common law marriage have to last to get spousal support in Texas?
There’s no minimum duration requirement for spousal support eligibility in common law marriages. Courts consider factors like the length of the marriage, each spouse’s earning capacity, education, and contributions to the marriage when determining support—just as they do with ceremonial marriages.
Last Updated: January 26, 2026
Disclaimer: This article provides general information about common law marriage in Texas and is not legal advice for your specific situation.
Take Action: If you have questions about whether you’re in a common law marriage or need to establish or dissolve one, consult a Texas family law attorney who can evaluate your specific circumstances and protect your legal rights.
Stay informed, stay protected. — AllAboutLawyer.com
Sources:
- Texas Family Code § 2.401 (Requirements for Informal Marriage)
- Texas State Law Library, Common Law Marriage Guide
- Russell v. Russell, 865 S.W.2d 929 (Tex. 1993)
- Obergefell v. Hodges, 576 U.S. 644 (2015)
- Texas Family Code provisions on community property and divorce
- Social Security Administration guidance on common law marriage recognition
About the Author
Sarah Klein, JD, is a former family law attorney with over a decade of courtroom and mediation experience. She has represented clients in divorce, custody cases, adoption, Alimony, and domestic violence cases across multiple U.S. jurisdictions.
At All About Lawyer, Sarah now uses her deep legal background to create easy-to-understand guides that help families navigate the legal system with clarity and confidence.
Every article is based on her real-world legal experience and reviewed to reflect current laws.
Read more about Sarah