Formal Marriage vs. Informal Marriage

In Texas there are two kinds of marriages: 1) the formal marriage that typically involves a ceremony and a stack of paperwork, and 2) the informal marriage that does not involve the same level of formality or documentation.  Evidence of a formal marriage is easy to find – there are multiple documents, many of which are filed in public records.  On the other hand, evidence of an informal marriage (also known as a “common law marriage”) must be found in the actions of the parties.

Texas law does not refer to a “common law marriage” – the Family Code uses the term “informal marriage”.  An informal marriage involves a relationship in which the parties, 1) have an agreement to be married, 2) live together in a marriage relationship and 3) hold themselves out to other people as being married.

Community Property Or No Community Property

Texas is a community property state. In simplistic terms that means both parties own an interest in all assets they acquire during the marriage. If there is a marriage, there is community property. If there is no marriage, there is no community property.

Divorce Or No Divorce

Proving that a marriage exists is the first step in every divorce case. That is easy to do when there was a formal marriage. A claim that the parties had an informal marriage must be supported by evidence that the parties 1) agreed to be married, 2) lived in a marriage relationship and 3) held themselves out as being married.

The evidence offered in a typical informal marriage/divorce case might include:

If the judge believes the evidence does not prove a common law marriage, the divorce case will be dismissed. If there is proof that a common law marriage was formed, the judge will enter orders stating that the parties are married and there are grounds for a divorce.

Show Me The Money!

Proof that a common law marriage exists raises the assumption that there is community property and the judge has authority to divide it between the parties. At that point the focus of the divorce case shifts to the financial issues. The judge is not required to divide the community property equally between the parties – all the pertinent facts are to be considered resulting in a “just and right” allocation of the assets and debts of the parties.

Pre-Marital Agreement

The Family Code authorizes the drafting of a pre-nuptial agreement to define the parties' financial obligations and other aspects of their relationship. The terms of the contractual agreement take effect with the parties marry and remain binding during the marriage.

Non-Marital Agreement

A similar agreement can be drafted to define the parameters of a relationship between parties who do not intend to be married. Often referred to as a “cohabitation agreement”, the document can address the same types of issues that a pre-nuptial property agreement would handle. An agreement typically includes schedules of the assets and liabilities owned by each party, outlines the financial obligations each party is to assume during their relationship and specifically states the parties do not intend their relationship to be interpreted as a marriage.

In cases involving parties who earn significant incomes, defining each party's financial responsibilities and limitations can be very important. Typically, an agreement outlines everything from the procedure for paying ongoing bills to the disposition of assets and debts if the parties go their separate ways.

Bottom Line

If there is no marriage, there is no community property. If there is no community property, there is no division of property. If there is no division of property, each party keeps his/her property. If there is no property dispute, there is probably no reason for a lawsuit if the relationship ends.