Are There Advantages to Common Law Versus Traditional Marriage in TX?

September 26, 2017 Posted in Our Blog

Contrary to popular belief, living together for a prescribed time period does not automatically create a common law marriage. Any type of marriage is a legal relationship, subject to Texas legal requirements. Any Dallas common law attorney would explain that entering into common law marriage is generally a less formal process than might be the case with traditional marriage. However, the lack of formality might be an advantage or a disadvantage.

A Comparison of Common Law Versus Traditional Marriage

Even though common law marriage does not require a marriage certificate, its properties are still quite similar to those of traditional marriage. The following are the main considerations from a comparison point of view:

  • Legal requirements: Texas law imposes certain age and waiting period requirements for couples that obtain marriage certificates and undergo some form of formal ceremony to enter into traditional marriage. Even without formal ceremonies or marriage certificates, common law marriages have requirements, too. Both parties must agree to be married, live together in TX as husband and wife and represent the marriage to others.
  • Divorce: Ending a marriage really applies to anyone who is legally married, regardless of how the marriage became legal. Couples must reach agreement and court approval for issues of property division, child custody and support, and even the potential for alimony.
  • Prenuptial agreements: When couples enter into agreements prior to a marriage, the law recognizes them as long as they are legally valid. In other words, prenuptial agreements typically take effect in the event of divorce — and can govern certain issues during a marriage — regardless of how the marriage took place.
  • Financial issues: Even traditionally-married couples can occasionally experience financial surprises, such as might be the case during divorce or even inheritance issues. An individual is probably more likely to face family challenges when they try to claim an inheritance from their common-law spouse.
  • Recognition of marriage in other states: States that do not support common law marriage are unlikely to recognize those marriages when couples take residence outside of Texas. Since most states have abandoned the concept of common law marriage, an out-of-state move can complicate issues for couples, particularly when legal issues pertain to their children.

The bottom line is that, as long as couples remain within the state of Texas, there are relatively few advantages or disadvantages between common law and traditional marriages.

Obtaining Legal Recognition of Marriage can Make a Difference

Couples may have personal reasons for preferring one form of marriage over the other. As a general rule, however, the validity of a common law marriage might be more open to interpretation than a traditional marriage. For example, when only one party claims to be married, the marriage might still be considered valid if the other party took no action to dispute the marriage.

When recognition of a common law marriage becomes an issue, some couples may choose to take formal action by registering their marriages after the fact, using a Declaration and Registration of Informal Marriage form available from the Texas Department of State Health Services. Couples that are planning to be married might ultimately find it simpler to take the traditional approach from the beginning. Before issues arise, it might make sense to discuss the specifics with an attorney who understands the common law marriage laws in Texas. To make the choices that apply best to a specific situation, contact us.