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Texas common law marriage - property owned beforehand?
Austin, TX
Viewed 217 times.
Posted 8 months ago in Divorce / Separation
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Hello,
I'm about to enter into a common-law marriage (no papers, just private ceremony with family, and we will declare ourselves married). I went through a divorce from a 'proper' marriage before, and was hit hard financially because I had to buy my wife out of the house we bought while married. Now, I am the sole owner of my house and all my property. Although I hope that this common law marriage will not end, I am worried about what will become of my property should it happen. She won't change her name, and we will keep separate bank accounts, credit cards, etc. Can anyone tell me what I can expect if this CL marriage were to end? Specifically, what would become of all the property I owned beforehand (house, car, etc)? Is it necessary to get a pre-nup to protect myself? Thanks
Additional information
Also, what about home improvements that are done after establishing common law marriage? Does the (assumed) increase in property value then become community property? Answers (2)
James Victor Esh
This attorney is licensed in Texas.
Posted 8 months ago.
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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. **** PROVIDED FOR INFORMATIONAL PURPOSES. THIS COMMUNICATION DOES NOT CREATE AN ATTORNEY CLIENT PRIVILEGE NOR DOES IT CONSTITUTE AN ATTORNEY-CLIENT COMMUNICATION. *** 
Lu Ann Trevino
This attorney is licensed in Texas.
Posted 8 months ago.
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These comments are made for educational purposes only and do not constitute legal advice. No attorney-client relationship exists between us.
The only way to end a common law marriage is by a real, in court divorce. Texas courts allow tracing of property ownership, if you came to the marriage with a car, you can leave with one. It is also possible to strip separate property from a spouse in a divorce if that spouse was responsible for the failure of the marriage. You can prevent these uncertainties by getting a pre-nuptial agreement. |
