Introduction
Texas recognizes “common-law” marriage, called an “informal marriage,” and it can carry the same legal weight as a licensed ceremony. That means rights and obligations—from property division to spousal support—can suddenly become part of your life if a court finds you were married informally under Texas law. Understanding what actually creates a common-law marriage is the first step to avoiding one you never intended.
Under Texas Family Code §2.401, an informal marriage can be proved in two ways: signing a Declaration of Informal Marriage with the county clerk, or showing three facts—(1) both of you agreed to be married, (2) you subsequently lived together in Texas, and (3) you “represented to others” that you were married, often called “holding out.” If any of those elements is missing, there isn’t a common-law marriage. There’s also no magic number of months or years together; time alone doesn’t make a marriage.
Because intent and public presentation matter so much, couples who want to cohabit without becoming married need a plan. The plan usually includes clear, written agreements and consistent day-to-day choices that avoid “holding out.” That can look like using accurate labels (“partner” or “boyfriend/girlfriend” rather than “spouse”), keeping finances mostly separate, and making sure leases, deeds, and beneficiary designations reflect unmarried status. Small details—like how you sign holiday cards or list each other at the doctor’s office—can add up as evidence.
A practical tool is a tailored cohabitation agreement stating that you both do not intend to be married and that living together won’t create a marriage. Well-drafted agreements can also address property, debt, and break-up logistics, which reduces future disputes. Just as important is what not to sign: the state’s Declaration of Informal Marriage form, which instantly memorializes an informal marriage and is strong proof in court.
Finally, remember the “two-year” presumption. If a couple separates and no one files a proceeding to prove a common-law marriage within two years, the law presumes there was no agreement to be married. That doesn’t replace smart prevention, but it can matter if a dispute arises after a break-up. The safest path is to be intentional and consistent: say what you mean, sign what helps, and avoid what hurts. This guide answers the most common how-to questions so you can cohabit confidently in Texas.
How to prevent an informal marriage in Texas
Start with clarity about intent. Under §2.401, an informal marriage requires an agreement to be married, cohabitation in Texas, and holding out as married. If you never agree to be married and you avoid representing yourselves as spouses, you remove two core elements. Put that non-marital intent in writing with a cohabitation agreement drafted by a Texas attorney.
Next, avoid “holding out.” Use accurate labels with friends, family, employers, schools, and doctors. Don’t call each other “husband,” “wife,” or “spouse,” and don’t check “married” on forms unless you actually are. Social media, joint holiday cards, and event invitations should reflect an unmarried status; courts look at conduct and statements, not just paperwork.
Finally, align your finances and paperwork. Keep separate bank accounts by default, be cautious with joint credit, and title property accurately. If you buy real estate together, consult counsel about how to title it as unmarried co-owners and how to allocate equity. And do not sign a Declaration of Informal Marriage; that document is strong proof of marriage the moment it’s filed.
Avoiding common-law marriage while cohabiting in Texas
Cohabiting doesn’t automatically create a marriage in Texas; there’s no minimum time requirement. What matters is an agreement to be married and holding out as such after cohabitation begins. To keep cohabitation non-marital, make your intent explicit and consistent. A well-crafted cohabitation agreement can say you’re not married, don’t intend to be, and will not treat the relationship as a marriage legally.
Adopt day-to-day practices that match that intent. Use separate accounts for income and expenses where practical; if you share bills, track contributions. On leases, list each occupant accurately and use “single” or “unmarried” where a status is requested. On school or medical forms, choose “partner” or “significant other,” not “spouse.” These choices reduce the risk of a court finding you “held out” as married.
Review documents that third parties see—insurance, HR benefits, emergency contact forms, and beneficiary designations—to ensure they don’t label you as married. If you need benefits access, ask your employer about domestic-partner policies rather than claiming “spouse.” Consistency across documents and conduct is key evidence that you never created a marriage in the first place.
Texas cohabitation without being considered married
Texas law allows couples to live together indefinitely without becoming married, so long as you don’t satisfy the informal marriage elements. There is no rule that “seven years together equals marriage,” and living together with children is not enough by itself. The law looks for an agreement to be married and for you to present yourselves to others as married after that agreement.
Practical steps help. Keep your surnames unless you legally change them through marriage. Avoid joint tax returns unless you’re formally married. If you host events together, avoid “Mr. and Mrs.” styling. When you sign for packages, leases, or warranties, sign in your own names and use “partner” or “co-owner” instead of “spouse.” These details reduce “holding out” signals.
Consider a cohabitation agreement that disclaims marital intent and clarifies property ownership, debt responsibility, and what happens if you separate. This document won’t override a true informal marriage if you later act like spouses, but it is persuasive evidence that you never intended marriage in the first place.
How long before Texas calls us common-law married?
There’s no time threshold in Texas. A couple can live together for years without being married—or be found married after a short time—depending on intent and conduct. Courts examine whether you agreed to be married, then lived together in Texas, and then represented to others that you were married. Duration can be background context, but it isn’t an element.
One timing rule you should know arrives at the end of a relationship. If you separate and no one files a case to prove an informal marriage within two years, the law presumes there was no agreement to be married. That presumption is rebuttable, but it’s meaningful in disputes after a break-up. Still, prevention beats litigation: document your intent and avoid “holding out” while you’re together.
The action item is simple: ignore the “seven-year myth,” focus on intent, and keep your public presentation accurate. If you ever change your mind and do want to be married, use a marriage license or the Declaration of Informal Marriage to leave no doubt about your status.
Cohabitation agreement to avoid common-law marriage Texas
A cohabitation agreement is a private contract that states you are not married, do not intend to be married, and agree that living together won’t create a marriage. In Texas, such agreements can also spell out who owns what, who pays which bills, and how you’ll unwind things if you ever separate. Courts consider these agreements as persuasive evidence of non-marital intent.
To make the agreement effective, be specific. Include a clause that both parties deny any present agreement to be married and that neither will “hold out” the other as a spouse. Cross-reference big-ticket items—like the home, vehicles, and major accounts—and attach schedules showing current ownership. Then live consistently with what you signed; a contract helps, but conduct still counts.
Update the agreement if circumstances change, like buying real estate together or starting a business. And store the signed original where you can find it. If there’s a dispute later, being able to produce a clear, dated agreement can avoid expensive litigation over whether a marriage ever existed.
Does filing taxes together create common-law marriage in Texas?
Filing a joint federal return is only available to people who are married under state law, including those validly married by common law. So, filing jointly is strong evidence that you considered yourselves married and publicly represented that fact. If you want to avoid an informal marriage finding, do not file taxes as “married” unless you are actually married.
Instead, each of you should file as “single” (or “head of household” if you qualify). Keep W-4s, HR forms, and benefits applications truthful and consistent with an unmarried status. Don’t claim marital exemptions or spousal benefits unless your status truly changes. In audits or court disputes, inconsistent paperwork can be used as evidence of “holding out.”
Remember: this isn’t about paying more tax—it’s about not creating misleading records. Talk to a CPA if you’re unsure which status applies in your situation. If you later marry formally, you can change your filing status accordingly going forward.
What counts as “holding out” as married in Texas?
“Holding out” means representing to others that you are married, through words or conduct, not just on legal forms. Examples include introducing each other as “my wife” or “my husband,” using the same last name socially, or signing cards as “Mr. and Mrs.” Courts can also look at how you list your status on applications, whether you wore rings in a way suggesting marriage, and what close friends or family believe about your relationship.
To avoid holding out, use accurate terms like “partner,” “boyfriend,” or “girlfriend.” On forms, check “single” or “unmarried.” Be consistent on social media, invitations, school records, and medical paperwork. If someone mistakenly refers to you as spouses, correct it politely. One slip won’t make a marriage, but repeated, public representations can add up to persuasive evidence.
When in doubt, think about the audience. If a third party would walk away thinking you are married because of what you said or signed, change the language. Consistency across contexts—family gatherings, work events, and official records—is your best protection.
How leases, deeds, and titles affect common-law marriage in Texas
Property paperwork won’t create a marriage by itself, but it can be powerful evidence of how you held yourselves out. A lease listing you as “spouses,” a deed saying “husband and wife,” or a car title showing the same surname might support a claim that you represented yourselves as married. Keep labels accurate and choose ownership structures that reflect unmarried co-ownership when that’s what you intend.
Ask your landlord to list you as “co-tenants” or “roommates.” On deeds, use your legal names and an unmarried designation, and consider a written co-ownership agreement setting out who paid the down payment, how mortgage and taxes are split, and how you’ll handle a sale. Align beneficiary designations on life insurance and retirement accounts with your intentions, and use “domestic partner” where available instead of “spouse.”
Most importantly, do not sign a Declaration of Informal Marriage when handling paperwork at a county office. That form is expressly designed to memorialize an informal marriage and is strong proof in court once filed. If someone offers you that form and you don’t intend to be married, decline and ask for standard co-ownership documents instead.
Breaking up: proving there was no common-law marriage in Texas
If you separate and there’s a dispute, evidence becomes crucial. A cohabitation agreement that disclaims marital intent is helpful. So are consistent records showing you listed yourselves as unmarried, kept separate finances, and avoided spouse language. Witness statements from friends or family who heard you deny being married can also matter. Organize this evidence early to reduce conflict.
Know the two-year presumption. If neither of you files a court proceeding to prove a common-law marriage within two years after you stop living together, the law presumes there was no agreement to be married. That presumption can be overcome, but it shifts the dynamics of a dispute. If someone threatens to claim a marriage, talk to a lawyer promptly about timelines.
If substantial property or children are involved, get counsel before making statements, signing separation agreements, or moving out. The goal is to resolve practical issues while preserving your documented non-marital status and avoiding unnecessary litigation.
How to date publicly without triggering common-law marriage in Texas
Dating openly doesn’t create a marriage. Problems arise when dating looks like marriage. Use correct labels in conversation and online, steer clear of “spouse” language, and avoid ceremonial events that resemble a wedding unless you’re ready for that commitment. Engagement-style announcements, elaborate vow exchanges, or matching rings can be misread as “holding out.”
If you share life logistics—like travel, caregiving, or big purchases—keep the records clear. When you book hotels or flights, choose “Ms./Mr.” not “Mrs.” If a restaurant lists you as “Mr. and Mrs.,” let it slide once but don’t repeat the representation. Small corrections build a consistent narrative that you’re a couple, not a married couple.
Finally, be mindful with third parties who ask about status for benefits, like gyms, clubs, or housing. If they only offer spousal options, ask whether they have “domestic partner” or “additional member” categories. Matching your words and your paperwork across venues keeps you safely outside the informal marriage framework.