A recent study by the Pew Research Center found that people are marrying later than earlier generations and living together more than ever. There are many misconceptions about the laws that apply when a couple decides to set up house together.
Common Law Marriage
In Texas, a common law marriage has the same validity as any ceremonial marriage. The law refers to it as “an informal marriage.” Three things have to happen within the state for an informal marriage: First, the couple must agree that they consider themselves married to each other. Second, they must live together as husband and wife. Finally, they must generally hold themselves out to the public as married. There is no minimum amount of time that they must live together, but the Supreme Court has also made clear that you cannot be married ‘by ambush.’ Isolated incidents of referring to your “husband” or “wife” do not necessarily prove an informal marriage.
Another potential problem is the joint purchase of property. When you buy property with another person, if there is nothing in writing about how much each one owns the law will not easily fill in the blanks. Just because one person pays for the asset does not mean that one owns it. If both people are on the title to a car or the deed to a house, neither can sell that asset without the other’s consent. If you use a joint credit card to buy an untitled asset like a TV or furniture, there is no clear answer about who owns it.
Debts are even trickier. Just because two people live together does not make them liable for each other’s debts. There is also no better position than to be an authorized user on someone else’s credit card. An authorized user may use the card up to the limit but has no responsibility to pay for it. When there is no community property to divide because a couple is unmarried, this can seem very unfair. The card holder might be able to sue the authorized user, but this can be expensive, and success is never guaranteed.
The law is well-developed to deal with children born during a marriage. Outside of marriage, the rights and duties are different.
During pregnancy, the mother has the sole right to decide whether or not to carry a child to term. At that point, she alone can choose whether or not a father is created, along with all of the responsibilities that go with parenthood.
A biological father is not automatically a legal father and has no rights or obligations. The simplest way to deal with this is the execution of an Acknowledgement of Paternity (“AOP”), which is usually signed by both parents at the hospital. However, an AOP gives the father the same rights as if he had been married when the baby was born, and is usually not given the same depth of thought as the decision to get married. It does not impose any obligations on him such as a duty to pay child support. New parents commonly sign the AOP, along with all of the other forms at the hospital after a baby is born, without understanding its impact.
Many people choose to live together to avoid the entanglements of marriage, and in doing so without careful thought and planning, can create a host of unanticipated problems.
Brian McNamara has been a family law attorney in Kingwood, TX since 1992.