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How common law marriage rules affect same-sex couples in Texas

The U.S. Supreme Court ruling that effectively made same-sex marriage legal in every state was a blessing for American equality. It's been more than a year now that non-heterosexual marriages have been fully recognized in Texas, and these couples are enjoying the rights, as well as duties, that marriage affords.

Unfortunately, the divorce rate in the U.S. stands at between 40 and 50 percent and gay couples face many - if not more - of the same challenges that their traditional marriage counterparts do to hold a family together. Going forward, one of those issues will be how the courts handle common law or "informal marriages" when same-sex couples divorce.

Texas is one of about 10 states that recognize common law marriages. The cultural myth that common law marriage takes effect automatically after seven years is simple not true in Texas. The state has very specific, although fairly simple, recognition standards. These standards may be of particular importance to same-sex couples.

Determining factors for common law marriages

Following are factors that a court considers when determining if you and your partner have created a common law marriage:

  • You both agreed to be married
  • You lived together as a husband and husband or wife and wife
  • You both represented to others that you are a married couple

Does the law apply retroactively?

The retroactive nature of common law marriage in Texas may be of particular concern for same-sex couples. Common law or "informal marriage" applies to couples who were together prior to the Supreme Court of the United States (SCOTUS) ruling in June of 2015. And, common law status doesn't require that a couple live together for any particular period of time.

If you and your significant other were putting yourselves out there as married thinking that there were no legal ramifications before the Supreme Court ruling, there are now. Therefore, in the event of an unfortunate and possibly messy breakup, you could find yourself with financial obligations to your significant other for things you may not have foreseen. You may also have a legal claim to receive benefits from your ex-spouse, including:

  • Alimony
  • Health care benefits or coverage
  • Division of property

Learn the facts before ended your relationship

The relatively newfound marital equality in Texas brings with it certain legal complexities that same-sex couples would be wise to clarify sooner rather than later. While common law marriages enjoy the same legal status as formal ones, there are significant differences in how they can be dissolved.

If you are in a same-sex common law marriage or you are planning to end your partnership, it is imperative that you learn about your options before separating. Seek the advice of an experienced family law and divorce attorney at the Law Offices of Mary K. Quinn.

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