Full question:
The man I have called my husband for over 2 1/2 years is leaving me for another woman he met over a weekend. I have been with him for about 5 years. We were never married because we were waiting until I finish school, December 2010. We have presented ourselves as a married couple to the public and in/on legal documents. I am 21 and he is 27 year old firefighter. We have community property and a home. We purchased a house together 9 months ago. I am primary on the mortgage because I had good credit and he had very little credit but no bad credit. He took out 7,500.00 first time home buyer tax credit and I was not the recipient of any of that money. Our home will appraise for what we owe and the realtor fees but not for the extra $7,500.00 he took out. He said he is working to save up the money to cover the $7,500.00 but all I see is money going out for a lot of other things. We are still both living in our home. I am doing it because want to make sure all of the bills are paid and the house is clean for potential buyers. I am a full time student and was laid off of my great part time job in January 2009. He said he had no problem supporting me until I finish collage. I did take another seasonal part time job but it paid about 25 % of what I had been making but at least I was working. Now the part time job is finished and I have no income again. My question is do we need to get a legal divorced? On my student loan documents I am listed as married and if I am no longer married they could ask to see the divorce decree. They (the University) make a big deal out of if we audit you student loans we will ask for all of the supporting documentation. If that had happened we would have just gone to the JP and gotten married but now I need divorce papers. I know I gave you more information then you need. Thank you for your help in advance.
- Category: Marriage
- Subcategory: Common Law Marriage
- Date:
- State: Texas
Answer:
Texas is one of several states that recognize common-law marriages. Please see the several websites that appear below as links. For your information, under Texas law, where common-law spouses either have children or have acquired property during the common-law marriage (also known as informal marriage), then the parties to the informal marriage may/must obtain a divorce in order to divide marital assets.
A definition for Common Law Marriage.
Common law marriage allows persons who live together as man and wife for a sufficient time and with the intent of having an exclusive relationship akin to a marriage to have the legal rights of formally married persons. Not all states recognize common law marriages.
Among those states that permit a common-law marriage to be contracted, the elements of a common-law marriage vary slightly from state to state. The necessary elements are (1) cohabitation and (2) "holding out." "Holding out" means that the parties tell the world that they are husband and wife through their conduct, such as the woman's assumption of the man's surname, filing a joint federal income tax return, etc. That means that mere cohabitation can never, by itself, rise to the level of constituting a marriage. Of course, many disputes arise when facts (such as intentions of the parties or statements made to third parties) are in controversy.
Common law marriage is commonly perceived as being created by living together for a certain number of years. However, states generally don't define a number of years of cohabitation for a common law marriage to exist. In order to have a valid common law marriage, there must be proof of all of the following: cohabitation for a significant period of time hold themselves out as a married couple -- typically this means using the same last name, referring to the other as "my husband" or "my wife" and filing a joint tax return, and intent to be married.
In some states, such as Pennsylvania, common law marriage was just another way to create a marriage by exchanging words of present intent, for example vows such as "I take you for my husband." "I take you for my wife." A common law marriage is legally recognized as a marriage and the way to end it is by getting a divorce.
States That Recognize Common Law Marriage:
Alabama
Colorado
District of Columbia
Georgia (if created before 1/97)
Idaho (if created before 1/96)
Iowa
Kansas
Montana
New Hampshire (for inheritance purposes only)
Ohio (if created before 10/91)
Oklahoma
Pennsylvania (if created before 1/05)
Rhode Island
South Carolina
Texas
Utah
Specifically, for common-law marriages in Texas, the following information is relevant.
Q: What makes a common law marriage in Texas?
A: Three elements must be present to form a common law marriage in Texas.
First, you must have "agreed to be married."
Second, you must have "held yourselves out" as husband and wife. You must have represented to others that you were married to each other. As an example of this, you may have introduced you partner socially as "my husband," or you may have filed a joint income tax return.
Third, you must have lived together in this state as husband and wife.
Q: How can I get out of a common law marriage?
A: Common law marriage may end in two ways. If there have been children or if property and debts remain undivided, you will want to seek a formal divorce. In a divorce, paternity, custody, support, and visitation can be determined, and debts and community property can be divided.
Under a new provision of the Family Code, either partner in a common law marriage has two years after you split up to file an action to prove that the marriage did exist. In order to fit into this provision, you must have separated after September 1, 1989.
Both partners in a common law marriage are responsible for debts and for care and support of children of the marriage. It is therefore urgent that you discuss the ending of this marriage with an attorney. You have a choice of methods, but they all require you to act within a certain length of time. However, even if the time has expired for you to obtain a divorce, other steps can be taken to get orders for payment of child support and visitation for children of the marriage.
Common Law Marriage Rules in Texas
Question: We've been living together for a while now. Am I "Common-Law" married?
Answer: Common-law marriage is established by proof that you have cohabited (lived together), represented to others that you are married, and had an agreement to be married. The agreement can be inferred from the other two elements. Texas Family Code section 2.401.
Common-law marriage, otherwise known as informal marriage, may also be established by filing a sworn declaration of and registration of informal marriage with the County Clerk of your county, pursuant to Texas Family Code 2.402.
There is a rebuttable presumption of no marriage unless a suit is commenced to prove the marriage before the second anniversary that the parties "separated and ceased living together".
Please see the information at the following links:
http://www.co.travis.tx.us/dro/common_law.asp
http://www.legalhelpinntx.com/law_office/faq/texas-marriage.html
http://www.unmarried.org/common-law-marriage-fact-sheet.html
http://marriage.about.com/cs/marriagelicenses/p/texas.htm
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
