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Common Law Marriage in Texas

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becca1

Guest
What is the name of your state? Texas

I've read every post in this forum, and I see that a couple members are quite knowledgeable about Texas Family Law.

I have a situation that I need desperate help with.

I live with a man who is not sure if he is "common law" married to his ex-girlfriend. They lived together for 10 years. During those 10 years they never expressed themselves to anyone, not friends of family, as being married or husband and wife. He did ask her to marry him a few times and she said "no". All of the assets (home, car, debts) are all in his name and he takes full responsibility for the balances.

Now, 8 years ago (while living together) they had a child but the mother would never publically say the father was her husband. She announced him to everyone as "the father of my child".....nothing more.

We understand the three criteria in Texas that a couple must meet to be considered common law married is:

1) Must agree to be married AND
2) Must hold out to others etc....AND
3) Must live together as husband and wife

Neither have ever agreed that they were "married", or to be married, or to be husband and wife.

The second criteria is the issue.....they filed married/joint returns for 8 years but never as Mr. and Mrs.....only listing their own last names. No documentation anywhere has stated Mr. and Mrs.

The third criteria.....they lived together but NOT as husband and wife. Their agreement was to jointly live together and care jointly for the child.

He has moved out yet still provides 100% financial support to her and the child. He wants to go through the Texas courts and get the "court ordered child support agreemnt" in place to obtain joint custody, visitation, child support etc.

Are these two legally married and does he have to proceed with a formal divorce?

Can any document drawn up by an attorney or by we ourselves serve as binding affadavit that we, for example, never intended to be married? (That we don't meet all three criteria?)

We would like to plan a formal marriage between us, but are unsure if he is considered "common law married" and obtain a divorce.

Please can anyone help??
Many thanks
Melissa
 


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Boxcarbill

Guest
Well, now if you read every post on TX informal marriage, you should know that the law presumes the element of "intent to be married" upon proof of the a co-habitation in the state of TX and a holding out to others as husband wife. You should also know from reading the posts, that filing a "joint and married" federal income tax return is most definitely a "holding out to others as husband and wife" and the oath that one swears when signing the income tax return that all statements are true and correct to the best of their knowledge makes the later claim that "we aren't married" perjury on the income tax return!

If neither claims to be informally married, then they are not but I would be looking over my shoulder for a possible tax audit because the tax rate for all those tax years would be different for single than married filing jointly. I think these two better carefully consider all this before deciding that they want to claim, now.
 

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