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How to Protect Yourself From a Common Law Divorce Case

In my last article, I talked about the statute regulating common law marriage in Texas, and the three things that define whether a couple could be considered to be legally married under those provisions.

For people who decide to live together before getting married, there are some steps I advise that people take to protect themselves from litigation.

The first step is to sign a cohabitation agreement with your significant other before moving in together. A cohabitation agreement can help a couple move forward with potentially complex legal arrangements, like buying a house together or having a child together. It’s also, incidentally, one way that gay couples can legally create provisions for themselves. (Because gay marriage is still not legal in Texas, gay couples can’t be considered married under common law statutes, even if they meet all three criteria for a common law couple per the statute.)

If you enter into cohabitation and don’t have an agreement in place, you should, at least, make sure that you establish that you’re single in all financial documents. Tax returns and W-4 forms are the most obvious financial documents where people are required to declare their marital status, but it’s crucial to be consistent across the board.

I had one client in a common law case who had lived with his significant other for nine years, yet had been consistent about declaring himself single in his financial records save for one document. He wanted to place his significant other’s teenage son on his car insurance policy, and couldn’t do it unless he said that he was married to his significant other.

That one declaration of marriage was enough for the jury to determine they had a common law marriage – meaning that, by trying to save a few hundred dollars on car insurance, he ended up paying a settlement that cost him nearly half a million dollars. While it seemed at the time like a minor admission on his part, it was enough to make all the difference in the world in his case – and it’s a cautionary tale for people who don’t think it could be.

As I mentioned in my prior article, common law marriage is a murky area of family law, and cases involving common law divorce can be challenging. Before anyone enters into a situation that could be construed as a common law marriage, he or she should take care to not contribute to that characterization in any way whatsoever.