How to Be Common Law, or Informally, Married in Texas
You executed a Declaration of Marriage pursuant to Texas Family Code Section 2.401 (a) (1)A husband and wife wanting to be married without formalities in Texas, can execute a declaration of their marriage. This declaration needs to be signed on a form prescribed by the Texas bureau of vital statistics and certified by the county clerk. The specific requirements for this form are set out in the Family Code, but the clerk of the county in which you live should have and provide these forms. Once this form is signed, the existence of the informal marriage can be proved by the form. It is possible that the marriage existed before signing the form (as discussed in Step 2 below), but the declaration acts as proof of the marriage.
You meet the 3-pronged test set out in Texas Family Code Section 2.401 (a) (2)My experience as a Texas Family Lawyer has been that most common law marriages alleged to exist in Texas are not shown by a declaration, as set out in Step 1 above, but are shown (or attempted to be shown) by one of the parties demonstrating that the three-pronged test set out in the Family Code was met. The Code says that the parties can file the declaration OR they can be informally married if 1) the man and woman agreed to be married, 2) after agreeing to be married they lived together in Texas, and 3) they represented to others that they were married. Usually, the living together part is easy to show. The most difficult prong of the test is the "agreement" prong. In the cases I've seen, one party claims there was an agreement and the other denies the agreement. Usually, the existence of the agreement is shown by the "representing" prong. In other words, you introduce evidence that the parties told others they were married, filed tax returns as a married couple, and so on.
ConclusionsThe existence of an informal marriage usually comes up when parties are separating. Whether or not they were married often determines the remedies that may be available in transitioning from being a couple to no longer living together. If married, the proper course of action is filing for divorce, which then allows for an (hopefully) orderly division of the community estate and, possibly, for relief like spousal support (alimony), payment of attorneys fees, and so on. If not married, very often there are few equitable remedies available, especially when one party has been working and the other has not. In those cases, much of the property may be owned by only one of the parties and the other party has little to show for the time in the relationship.
If you believe you may be in an informal marriage, and the relationship is falling apart, it is important to see a good family lawyer as early as possible to discuss your options.