J Thomas Black
Board Certified, Consumer Bankruptcy Law- Texas Board of Legal Specialization

Here in the Great State of Texas, it's possible to become "common law" married, that is, married without the benefit of a clergyman, ceremony or even a marriage license. It comes from the old prairie days here in Texas, when there were not enough "preachers" to marry all the people that needed to get married! The law is still the same, although it is now codified as Section 2.401 of the Texas Family Code, Proof of Informal Marriage. 

A couple can either sign a written declaration of informal marriage and record it with the County Clerk, or they can (1) agree to be married; (2) hold themselves out to other people as husband and wife; and (3) cohabit, if only for one night. Texas Family Code, Sect. 2.401(a)(2)

Quite a few people consider themselves to be "common law" married in Texas. Once your common law or informal marriage is established, it has the same legal effect as a ceremonial or formal marriage. If you decide it has not worked out, you have to divorce! Common-law marriages also sometimes end up in court when one of the parties passes away, and the survivor must prove that they were married in order to inherit.

I have filed bankruptcy for couples that have lived together for years, act as if they were married, have had children together, file taxes together, and consider themselves married, without the benefit of a formal ceremony or a marriage license from the state.

If you are considering filing an individual bankruptcy case and you are married, it's generally two for the price of one, at least in our law office. A couple that is married is eligible to file a joint bankruptcy case. Only spouses can file a joint case. You can't file a joint case with your mother, another relative or a friend. I can't speak for all attorneys, but our Houston, Texas law office charges the same fee or nearly the same fee for a joint bankruptcy case as we do for a single filer. 

So by all means, if you are "common law" married in Texas and you need to file bankruptcy, you might as well file a joint bankruptcy case and save 50% on the attorneys fees and the court's filing fee. Otherwise you would have to file two separate bankruptcies, and pay two attorney's fees and two filing fees. That's saving a lot of money! 

What do you think of common law marriage in Texas? Do you think people should be able to do it, or not, and if not, why not? Please leave your questions or comments below.

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