Texas Cohabitation Relations Vs. Marriage in Texas
Unlike marriage, even under the common law, which existed before the Family Code, and even now under subsequent case law, cohabitation generally has no legally enforced consequences. There are certain property and economic factors that can be relied upon as evidence of a "common law" marriage, but there is no satisfaction of the requirements a court must have to enter a decree of divorce as to "common law" spouses. In other words, you can meet the test to prove a "common law" marriage part and not the other, and so the law will not deem you to be married.
The common law spouses also benefit from the same judicial proceedings as married spouses with regard to many economic concerns. For example , a common law wife can recover maintenance in a family law matter just as a formally married spouse can. Her circumstances, however, must satisfy the requirements for that recovery, whereas a formally married spouse relies purely on the marriage itself for that right.
Cohabitation is still a lawful act in Texas, and is generally beyond the purview of the Family Code except in the case of affirmative harm based fact situations. Even so, it is a notable distinction from marriage or quasi-marriage forms like cohabitation or common law marriage. Cohabitation is merely a recognized fact of life in Texas except in narrow and extraordinary circumstances of affirmative harm: otherwise it has no legal significance.
Cohabitation Rights for Legal Couples
While Texas does not have any laws specifically focused on cohabitation, cohabitating couples do have legal rights in several different areas. Even though cohabitating couples are treated as if they were unmarried roommates, the Texas Family Code has adopted some provisions from the laws that apply to married couples that are useful for cohabitating couples. For example, cohabitating couples may jointly own as tenants in common all types of real property and personal property.
The obligation to help provide support for a child is imposed upon both parents regardless of their marital status. As a result, child custody, visitation and child support issues are governed by the Texas Family Code with no special exceptions for cohabitating couples.
Cohabitating couples are subject to laws applying to non-married people in dealing with real and personal property. If an unmarried couple sold real property that they jointly owned as tenants in common, the proceeds would be divided according to their respective interest in the property. If one partner disposes of jointly owned personal property without the other partner’s consent, the other partner may sue to recover the value of his/her share or to seek return of the property from the purchaser.
Cohabitating couples have limited rights in relation to medical care, probate and tax matters. Since cohabitating couples are not considered immediate family, the surviving partner is not entitled to inherit from the other’s estate in the event of death and does not have access to non-probate assets. Similarly, a person cannot make medical decisions for his or her partner, including consenting to medical treatment, unless an advance directive is executed to confer such authority. And since the federal estate tax laws treat married couples differently than unmarried couples, a couple may consider making lifetime gifts to one another during their lifetimes so as to avoid the federal estate tax that otherwise may be applicable to couples that are not married.
Texas Common Law Cohabitation
One option that some couples may consider is a common law marriage, or informal marriage, which does not require a wedding ceremony or marriage license, provided certain requirements are met. According to Texas Family Code Section 2.401, a couple may enter into a common law marriage in Texas if the following elements are proven:
- The couple has an agreement to be married.
- The couple lives together as spouses after the agreement to be married is made.
- The couple represents to others that they are married.
Common law marriage is substantially similar to a ceremonial marriage. For example, in a common law marriage you can file your taxes jointly, receive medical benefits through your spouse’s coverage and obtain Social Security benefits through a spouse. Alternatively, if you dissolve a common law marriage, the requirements for property division upon divorce will be the same as those of formally married couples.
However, common law marriage is often distinguished from cohabitation. Cohabitation is the arrangement where a couple lives together without formalizing their relationship with the state. Cohabitation is generally not legally binding and does not provide the couple with the benefits of marriage.
Cohabitation Agreements in Texas
Cohabitation agreements can be very important for cohabitating couples in order to protect themselves from potential future claims. It can be very difficult to determine what rights a common law spouse may have with respect to property acquired during the relationship. Even if cohabitating couples are not going to marry, they should consider whether an agreement might be beneficial and what the agreement will stipulate.
Generally, cohabitation or non-marital agreements will address the division of property, child support, the separated nature of income earned by each party, possession of property after the death of a party, and a waiver of the right to bring a claim for spousal support.
Parties may choose to provide that the agreement will terminate the right to seek a division of community property, if any, upon dissolution of the cohabitation or upon the death of either party. The most significant advantage to a cohabitation agreement is that it provides two private individuals with the right to contract with regard to their future financial obligations and property rights.
Under Texas rule, when no children are involved, married parties can agree to a division of property. Conversely, cohabitating couples have no statutory authority under the Family Code to divide their community property. A cohabitation agreement may avoid the need for an agreement during a divorce on a division of property acquired during the relationship and as a result create for the parties during the period of cohabitation an enforceable agreement regarding the rights that would attach to the property. A cohabitating couple would have (1) a written agreement tailored between the two parties, and (2) a document that will survive a separation and may create binding obligations.
If children are involved, the parties can agree to any issue involving their children as long as it is in the best interest of the child. The agreement may be incorporated into a final decree of divorce. If the parties cannot agree on the best interests of the children in the event of a divorce, the court is required to enter an order it believes is in the best interests of the children. However, if the parties do agree and that agreement is in the best interests of the children, the cohabitation agreement will be enforceable and binding on the parties.
Under Texas law, without a cohabitation agreement, a party may bring a cause of action before a court to enforce a common law marriage upon proof of the three elements of that marriage, namely: (1) that a declaration of the parties to be and have been married to each other has been made; (2) that after the declaration, but while agreeing to be married, the parties have lived together in Texas as husband and wife and represented to others that they are married; and (3) that they have ceased to do so.
Parties may wish to avoid the litigation and costs of establishing a common law marriage. If the parties agree to enter into a cohabitation agreement, they are not likely to be deemed to have entered into a marriage during the term of the cohabitation and therefore party will be subject to a claim upon the failing of the relationship.
Cohabitation Involving Child Custody and Child Support
In cases where cohabitating parents separate, the legal ramifications include questions of child custody and support. The straightforward answer is that many cohabitating parents settle custody issues without problems, simply because they agree on all terms. In contested cases, it’s not as simple, partly because cohabitation raises questions of parental rights and responsibilities that fall outside the realm of marriage. Essentially, cohabiting parents can, and often do, create family lives for their children with similarities to those enjoyed by kids whose parents are married. Moreover, Texas adoption laws treat unmarried parents differently from married parents, and unwinding these laws can require negotiation, mediation, mediation and litigation over a custody agreement. An important point regarding parental rights is that the Texas Family Code entitles married and unmarried parents to equal consideration in family court. Regardless of marital status , you’re a mother or father with all corresponding rights if you are an unmarried parent in Texas. It’s also worth pointing out that, as an unmarried parent, you can legally contest the rights of the other parent and you may suggest modifications in parental rights through mediation or litigation. Regarding child support, the Texas legislature defined the responsibilities of cohabitating parents in 1997. When you’re divorced, both parents must contribute to the financial welfare of children; if you’re unmarried it’s a little different. Essentially, cohabiting parents owe the following obligations: The balance of parenting agreements for unmarried parents is similar to that of married parents with a few notable differences. Primarily, unmarried parents cannot file for divorce – but they can use many alternative arguments to contest custody and other issues.
Texas Health and Insurance Benefits
While some employers offer domestic partner benefits in the workplace, Texas law does not compel them to do so. Instead, a Texas employer who provides insurance benefits to a same-sex domestic partner can be charged human resources taxes at an elevated rate on those benefits. This creates a tax burden for the employer and inflicts federal taxes on the domestic partner. This being the case, cohabiting partners cannot generally access health and other insurance benefits provided by their partner’s employer, unless some workaround is found.
However, for Texas public employees, health insurance cannot be denied to domestic partners. Texas state employees are allowed under their health insurance plans to enroll their domestic partners for health coverage. Employees have to pay their plan premiums with post-tax money, and the government sends a 1099 to the employee at the end of the year for the value of the benefit, which become taxable income.
University employees are also permitted to enroll their domestic partners in health insurance coverage through their university system. On the other hand, public school employees are not permitted to enroll their domestic partners in benefits.
Texas law does not include a standard definition of domestic partnership, so health benefits are sometimes granted on a case-by-case basis with documents that list eligibility requirements. These eligibility requirements vary depending on each employer’s policy.
Examples of Cohabitation Cases and Updates in the Law
Texas law regarding cohabitation remains an evolving area of jurisprudence. While the issue has not been expressly decided at a state Supreme Court level, there have been influential cases at lower court levels that, when coupled with statutory prescriptive authority, have helped to shape the current state of cohabitation jurisprudence in Texas.
As recently as 2011, the Fort Worth Court of Appeals reiterated the rule that cohabitation is formalized and organized in the State of Texas and Texas law implies that in order to be cohabiting, a man and woman have to be living together for a time, in a manner akin to marriage, until death or a divorce terminates the relationship. See Jones v. Jones, 353 S.W.3d 455 (Tex. App.—Fort Worth, 2011). In this case, the court issued a memorandum opinion applying the Sanchez/Mead test which has become the de facto standard by which cohabitation is determined in Texas. This test requires that the evidence show: (1) a holding out; (2) a semblance of husband and wife relationship; and (3) an agreement to be married.
In 2010, the Dallas Court of Appeals further clarified the Sanchez requirement when it stated that "holding themselves out as married" can refer to more than a blatant couple’s statement to others that they are married; the behavior of the parties may be enough to satisfy this requirement. See White v. Houston, 354 S.W.3d 925 (Tex. App.—Dallas 2010). In White , the cohabitating couples’ conduct explicitly demonstrated the holding out requirement. They shared the same last name, answered the phone as Mr. and Mrs., filed their 2002 taxes as spouses and received a joint tax refund and opened a joint bank account.
Unlike other nonmarital asset claims, the Texas legislature has chosen not to apply a statute of limitations to claims based on cohabitation. In 2008, the San Antonio Court of Appeals opined that since cohabitation claims almost always involve informal and secretive relationships, it was not surprising that the statute of limitations law would not likely apply. See Silverman v. Frank, 258 S.W.3d 582 (Tex. App.—San Antonio 2008).
The Texas Courts of Appeals have handed down many opinions that consider cohabitation in the context of other issues. There are a few noteworthy matters that deal with how cohabitation affects the interests or rights of third parties. For example, under fraud analysis, confidences and discussions between a lawyer and client are protected from disclosure. In Jones v. Fourth Court of Appeals, 646 S.W.2d 250 (Tex. 1983), the Texas Supreme Court held that even in a bitter divorce proceeding, there is no reason that negotiations concerning the settlement of a fraudulent transfer claim should not be privileged. In Moore v. Franklin, 816 S.W.2d 421 (Tex. App.—Amarillo 1991), the Amarillo Court specifically held that a gratuitous transfer of property to his mistress, does not bar the transfer from being set aside if it is found to be fraudulent.