What constitutes common law marriage in TX?

My girlfriend was married to this guy and they have 1 kid together. They got a divorce and stayed apart for a year, then she lived with him again for a year and filed a tax return together, but she didn’t use his last name. Would this make them common law married in TX?. He is giving her trouble seeing her daughter now and telling her that since they lived together they are common law married and that voided custody rights in original divorce.

Asked on July 31, 2010 under Family Law, Texas


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Texas uses a three prong test to determine if you are considered married under the common law theory. 

First, you must have "agreed to be married."
Second, you must have "held yourselves out" as husband and wife. You must have represented to others that you were married to each other. As an example of this, you may have introduced you partner socially as "my husband," or you may have filed a joint income tax return.
Third, you must have lived together in this state as husband and wife.

The filing of the tax return is pretty damning.  But you need to fulfill all three prongs as far as I can see.  I would have her seek legal help as soon as she can about the custody and visitation rights of the prior agreement and what she should do now.  I would challenge her ex but she will need help.  Good luck.


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