Common-Law Marriage in Texas

Many couples in New Braunfels have lived together for years, shared a home and finances, and maybe raised children, without a ceremony or marriage license. When the relationship ends or one partner dies, a hard question arises: were they legally married? Texas is one of a minority of states that still recognize informal marriage, commonly called common-law marriage. Whether a couple was married determines whether community property rules apply, whether a divorce is needed, and who inherits. For Comal County couples, the answer depends on specific facts a family law attorney can help you sort out.

The Three Elements of a Texas Informal Marriage

Under Texas Family Code § 2.401, an informal marriage exists if a man and woman, or now any two adults, meet all three of these requirements:

1. They agreed to be married. Both people intended a present, permanent marriage, not a future one or a trial run.
2. After agreeing, they lived together in Texas as spouses. Living together outside Texas does not satisfy this element.
3. They represented to others in Texas that they were married. Often called “holding out,” this means telling people, or acting publicly, as a married couple.

All three must exist at the same time. Living together without an agreement to be married is not enough. Calling each other “husband” and “wife” in passing does not prove an agreement by itself. Courts look at the full picture.

Common Myths

• “Seven years makes it official.” Texas has no time requirement.
• “Living together means we are married.” Many cohabiting couples are not married.
• “We have to file something.” Filing is optional. A couple can be married without a declaration.
• “Common-law marriage is a lesser form of marriage.” A valid informal marriage has the same legal effect as a ceremonial one.

Proving an Informal Marriage

When one partner claims a marriage and the other denies it, the court looks at evidence. Helpful evidence can include:

• A signed Declaration and Registration of Informal Marriage
• Joint tax returns filed as married
• Insurance policies, benefit forms or employment records listing a spouse
• Leases, mortgages, deeds or loan documents describing the couple as married
• Cards, social media posts, invitations and photos where the couple presented themselves as spouses
• Testimony from friends, family, neighbors and coworkers
• The woman’s use of the man’s last name, or other name changes, when consistent with other evidence

Evidence that cuts against a marriage can be just as important. Filing taxes as single, signing documents as “unmarried,” or telling a lender you are single may weigh heavily against a later claim of marriage.

The Two-Year Presumption

Timing matters. If a couple separates and no proceeding to prove the marriage is started within two years after the date they separated and stopped living together, Texas law presumes they did not agree to be married. That presumption can be rebutted with evidence, but it makes the claim harder. Anyone who believes they were informally married should talk with a lawyer promptly after a breakup.

Registering a Declaration of Informal Marriage

Couples who want clear proof can sign a Declaration and Registration of Informal Marriage and file it with the county clerk. In Comal County, that is the Comal County Clerk. The form states the date the marriage began, and both people sign it under oath. Once recorded, the declaration is strong evidence of the marriage. Check with the county clerk for the current form, identification requirements and fee.

A declaration is useful for couples who need to prove marriage for health insurance, military benefits, immigration matters or inheritance planning. It does not create a marriage that did not already exist under the three elements.

Ending an Informal Marriage in Comal County

If a couple was informally married, they must get a divorce to end it, just like any other married couple. The same rules apply:

• Residency requirements for filing, including six months in Texas and 90 days in the county
• The 60-day waiting period
• Division of community property under the “just and right” standard
• Possible spousal maintenance
• Conservatorship and support for children

Many informal-marriage divorces involve a threshold fight over whether a marriage existed at all. Property acquired during the claimed marriage may be community property if a marriage is proved, but if no marriage existed, each partner generally keeps what is in their own name, subject to ordinary property and contract law. Our pages on community property and how to file for divorce explain what follows once the marriage is established.

New Braunfels straddles Comal and Guadalupe counties, so the county where you file depends on where you live and how long you have lived there. Our page on where to file for divorce walks through those rules.

If You Were Never Married

Many couples who lived together in New Braunfels were never informally married, and that has its own consequences. Without a marriage, Texas community property rules do not apply. Each partner generally keeps property titled in their own name. A partner who helped pay for a house or truck titled to the other may need to rely on written agreements, joint titles or ordinary contract and property claims, which are harder to prove than a community property claim. No spousal maintenance is available.

If you share a home or children but do not consider yourselves married, it is wise to say so consistently on tax returns, leases and benefit forms, and to put important property arrangements in writing. Parents who were never married still need court orders on custody and support. Our page on unmarried parents explains how those cases work.

When a Partner Dies

Common-law marriage questions often arise after a death. A surviving informal spouse may have inheritance rights, community property rights and claims to benefits such as Social Security survivor benefits or life insurance. Family members sometimes dispute the marriage. These cases usually go through probate, where the surviving partner must prove the marriage, often with the same kinds of evidence described above. Act quickly, because deadlines in probate and benefit claims can be short.

Children of Informal Marriages

When children are born during an informal marriage, the husband is generally presumed to be the father, just as in a ceremonial marriage. If the marriage is disputed, paternity may need to be established separately. Our paternity page explains the options. Either way, custody and child support are decided under the same Texas rules that apply to every family.

Talk With a New Braunfels Family Law Attorney

Whether you need to prove an informal marriage, deny one, or end one through divorce, the outcome depends on the evidence and on acting within the deadlines. Our family law team helps couples throughout New Braunfels, Comal County and the surrounding counties. Call (830) 302-4071 for a free consultation by phone, video or in person. Se habla español.

Last reviewed November 13, 2026. General information only, not legal advice.