Texas common law marriage - property owned beforehand?

A common law marriage is as valid and is the same thing as a ceremonial marriage. In other words, you will need to get a divorce if the marriage ends regardless whether it was a ceremonial marriage or a common law marriage. Texas does not have a "time limit" to be considered common law married. There are essentially three elements to "determine" whether a common law marriage exists. Abbreviated elements are as follows and must exist at the same time: 1) Live together as husband and wife, 2) agree to be married, and 3) hold yourself out to be married.

While having a private ceremony is strong evidence that the common law marriage "began" on the day of the private ceremony, it would be possible to show that the common law marriage started before hand.

If you owned the property prior to common law marriage coming into existence, then it would be your separate property. Upon divorce and/or death, the assets would be treated as separate property. If acquired the property after the common law came into existence, then it would be presumed community and would be divided accordingly in a divorce or distributed accordingly at death.

A couple of different options you have which might be helpful. First, a pre-nup is definitely an option. There are specific requirements under the statutes outlining the necessary requirements to make prenups enforceable and they are strictly applied. Second, you can file a "common law affidavit" which outlines the details of the common law marriage -- e.g. the elements of the common law mentioned above, and the date. Signed by both of you.

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