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  • Writer's pictureMargaret McCroan

“Common Law” or Informal Marriage Texas Family Code 2.401

Informal Marriage is a topic that seems to be widely discussed in Texas. Most people refer to what is called informal marriage in the family code as “common law” marriage. Even lawyers tend to use the terms interchangeably. While some of the rumors are true when it comes to what is required of an informal marriage in Texas, there is a lot of false information out there. This blog post is going to attempt to give a brief overview of what an informal marriage is in Texas.

What is an Informal Marriage?

There are two ways to get married in Texas. The more formal way of getting married is by using a marriage license and having a ceremony. One of the good things about the Texas system of having informal marriage is that if there is some sort of mess-up with the formal marriage requirements, you can usually fall back on the informal marriage requirements and still prove that a couple was married.

An informal marriage is basically a marriage without a marriage license. The requirements for an informal marriage are laid out in Section 2.401 of the Texas Family Code. An informal marriage can be proven by filing a declaration of informal marriage which is similar to a marriage license. The main difference between a declaration of informal marriage and a normal marriage license is that a declaration of informal marriage is based on a date in the past when an informal marriage began and a traditional marriage license is filled out in the present tense based on the date when two parties are married. This can make a big difference for community property issues when it comes to death or divorce among other things.

How Do You Prove an Informal Marriage Exists?

Section 2.401 of the Family Code requires that a couple agreed to be married and after the agreement they lived together in this state as spouses and there represented to others that they were married. What this means exactly can vary from case to case. Some good evidence of an informal marriage can be filing taxes as married; changing a last name; designating a person as a spouse for purposes of insurance or other benefits; or simply referring to someone else as husband or wife around other people.

Is There Such a Thing as an Informal Divorce?

The short answer is no. In Texas, the only way to end a marriage is with a regular divorce or the death of one of the spouses. However, section (b) of 2.401 provides that if no case is commenced to prove the existence of an informal marriage within two years of separation, it is presumed that no marriage exists. This means that if two years have passed after a couple separates, it will be much more difficult to prove an informal marriage existed and some people argue that this is a type of informal divorce. Although having a court find that you were never married is very different than having a court grant a divorce.

If you have a question about an informal marriage or any family law issue in Williamson County or the surrounding areas contact the Law Office of Margaret McCroan at 512-777-0850 and we can set up a time for a free phone consultation.

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