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My common law husband has ask me to leave his house. Can he do this? We have been together for over 5 years. I know consult some

Conroe, TX |
Attorney answers 2

Best Answer

Texas uses a three prong test to determine if there is a common law marriage. You must show (1) an agreement to be married, (2) cohabitation in this state, and (3) 'holding out' to others that you are married. This isn't an easy test to meet, since if either of you have told others you are not 'married' at almost any time, the Court would have good grounds to simply deny a common law marriage.

Texas also recognizes a specific document you both would have signed, described in the Tex. Fam. Code under section 2.402, but there wasn't a mention of such in your brief question, so I am assuming it doesn't apply.

As for kicking you out, part of that will depend on whether you have a common law marriage, and it may also depend on whose name is on the legal documents re the property... you will want to speak with an attorney about both of these.

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First, whether or not you have a common law marriage is a question of law and facts. Your question assumes you have a common law marriage--you might, you might not. You need to discuss this IN DETAIL with an attorney to even know if you have a common law marriage. It's not very likely that you do, but it's all in the facts and you haven't given any facts to suggest one way or the other. The fact that you've lived together 4 1/2 or 5 years is a factor, but it is not dispositive of the issue.

Second, depending on other factors, your boyfriend might have to evict you from the house rather than just kick you out. But in Texas, the eviction process is fast and you will get tossed out with the clothes on your back if you're not careful. If your facts suggest that it is likely that you do have a common law marriage, the result is different. Also, depending on who paid for what in terms of the mortgage, repairs, upkeep, improvements, etc. you might have an equitable claim against the guy, whether or not you are "married."

You can see that as much as you want a simple "yes or no" answer, it's not a simple issue. I'm sorry you're going through such a rough time and are faced with having to move out on very short notice. A consultation with a local attorney will cost you $200 - $400 dollars and would be well worth it because you'd walk out knowing exactly what your rights are and how to protect them.

You probably need to accept the fact that this relationship is over, grab everything that you think is yours, and move out. Otherwise, you have a great chance that this situation will end ugly.