What Constitutes Cohabitation in the State of Texas?
Texas has a unique legal and social landscape when it comes to matters of cohabitation and its effects on spousal or alimony support obligations following divorce. In this section, we will explore the definition of cohabitation in the state of Texas, how it differs from cohabitation laws in other states, and recent developments in the law that have solidified and nuanced the state’s approach to this issue.
In Texas, cohabitation is defined as a couple living together on a permanent basis, in a romantic relationship, but not legally married. Under the Texas Family Code, there is no explicit legal definition for cohabitation. The determination of whether a couple has been cohabitating is fact-specific and depends on the circumstances and actions of the parties involved. Often, the question is whether the cohabitation exists on a long-term basis, or whether it is simply a short-lived arrangement that does not merit concern.
On the legal front, cohabitation laws vary from state to state. The majority of states do not define the term and instead focus on how cohabitation affects alimony or spousal support obligations. In some jurisdictions, evidence of cohabitation may lead to the reduction of the support obligation if the supported ex-spouse’s financial needs are being met by the cohabitating partner. Other states do not recognize cohabitation at all in the alimony context. In a minority of states, including Florida, the law is silent on the issue.
There has been an ongoing trend among Texas courts to consider cohabitation when making alimony support rulings. In the 2006 case of Wilbanks v . Wilbanks, the Texas Supreme Court held that cohabitation could affect spousal support obligations under a modified divorce decree. In this case, the court set a legal standard for alimony termination upon a finding of cohabitation. The later case of Ex parte Wiley further clarified the law by requiring trial judges to consider all relevant factors when determining whether alimony should be adjusted based on the recipient’s living arrangements.
In recent years, the Texas legislature has strengthened and clarified the law on cohabitation by defining "spouse" to include cohabitating partners for purposes of calculation of past due alimony. In the 2019 case of In re K.B.C., the Amarillo Court of Appeals applied the law in a helping a former spouse enforce an invalidated decree for alimony. The former spouse sued to enforce an invalidated decree against the former spouse who was living with another partner. In a 2020 case of Lonnquist v. Hutton, the Dallas Court of Appeals held that the lower trial court abused its discretion by granting alimony to the wife and failing to consider evidence of her cohabitation. This case also reinforced the court’s role in determining whether spouses were involved in a cohabitation relationship.
While defining cohabitation poses many challenges for family law practitioners, it remains important to understand what it means to be a "spouse" and understand how evidence of cohabitation can affect alimony. In recent years more and more issues have arisen in divorce, alimony, and child support cases that require practitioners to think critically about how the law applies and what it means to be a spouse.
Legal Considerations of Cohabitation in Texas
The notion of ‘common-law’ marriages has evolved over the years to now encompass a more specific definition. In Texas, if you and your partner informally live together and you hold each other out as a couple, Texas courts will only recognize the marriage if you two directly agree to do so. You cannot create a common-law marriage verbally or non-verbal cues.
You and your partner must meet these three criteria for common-law marriage:
- Legally able to marry
- Agreement to be married
- No other legal impediment
If you have benefited from cohabiting together, both partners may be responsible equally for paying off the debts that form because of the cohabitation. This might include student loans, credit cards or home equity loans. If you and your partner recently bought a house together, then a court might divide the value of the home, or bequeath the house to one spouse in the divorce decree.
Property you owned before you moved in together remains your property. If you purchased a home or purchased a new car while you lived together, the courts will divide the value of the property equally at the time you separate or divorce.
Particularly for unmarried couples, it is important to have a private agreement listing your personal property and how you will divide it in the event of a separation. You may find it in your best interest to sign a prenuptial agreement before moving in together establishing a date when you ceased cohabiting as a date of separation.
Common Law Cohabitation
In Texas, the terms "common law marriage" and "cohabitation" often come up in conversations surrounding the rights of romantic partners. While cohabitation might contribute to a common law marriage, the two are not synonymous in Texas law.
An individual can live with a partner for a period of time without becoming married. Cohabitation alone – sometimes referred to as "shacking up" – does not create a common law marriage, which requires: In addition, the cohabitating partners must publicly hold themselves out as being married to one another.
When one or both partners acknowledge the marriage, that’s where things get tricky. For example, if one partner refuses to acknowledge the relationship as a marriage, they could be subject to litigation with the other. In one case, a man in Texas sought to assert a common law marriage with his deceased girlfriend based on a vague but positive comment she made regarding marrying him, even though she often expressed a desire to wait because of their shared teen-aged children. Because the man had no definitive proof that they were common law married, the court did not grant his request.
It’s not sufficient for a person to simply claim to be married – instead, there must be demonstrable evidence of a verbal and/or emotional commitment between spouses. Statements and actions made to others can often hold up in court, particularly when the partners tell friends and family members that they didn’t want a formal wedding ceremony or license.
Texas Cohabitation Agreements
Cohabitation agreements are contracts that set forth the obligations and restrictions a couple agrees to abide by while cohabiting. With a growing number of couples choosing to live together without the formality of marriage, these agreements are becoming considerably more common.
Cohabitation agreements can serve a variety of purposes. For example, they may be beneficial for determining how property should be divided after splitting from an unmarried partner or ensuring that there is no expectation of financial support. They may also protect individual assets from division in the event of a breakup.
Some agreements state the right of a person to stay in a residence after separation, while others may address issues such as how to handle joint debt obligations.
Cohabitation contracts differ significantly from prenuptial agreements. Cohabitation agreements can be more relaxed than a pre-marital contract because Texas does not require any factual grounds for declaring them valid. Cohabitation agreements must meet the general requirements of any enforceable contract , including:
Many states are reluctant to enforce nonmarital cohabitation contracts. Courts in Texas have invalidated some provisions of unenforceable cohabitation contracts while upholding others. In one case, a court held that the "spouse" provisions of an agreement were invalid, but the support and property provisions remained enforceable. Other courts have held all provisions of cohabitation agreements to be unenforceable.
The validity of cohabitation agreements may hinge on whether they violate public policy. Courts in different jurisdictions hold conflicting views about whether they are contrary to public policy. In some cases, courts in states that uphold contracts declare cohabitation agreements to be valid.
Further complicating issues in Texas is that some courts will uphold portions of a cohabitation agreement, such as enforcing a waiver of support, while declaring that all provisions were void because of public policy. Others will uphold all terms of an agreement. Despite these variances, cohabitation agreements can potentially help cohabitating couples.
Effect of Cohabitation on Child Custody and Support
In Texas, the weight of cohabitation’s impact on child custody arrangements and child support obligations can vary depending on several factors. As per Texas Family Code section 154.061, when making decisions concerning the possession and access of a child or a child support modification, a factor that the court may consider is whether a parent has a relationship with someone else which results in the person routinely being present in the child’s home. The judge can consider the "reputable character" of a third party and make determinations about how the third party influences the child.
In some instances, the presence of a live-in partner has been used against a parent. In the Texas case of In re Marriage of McKown and Locklear, a mother’s time with her new live-in partner was significantly limited because of concerns of the partner’s character. The mother was going to have her boyfriend and his son move into her home. However, the father was given more of a bond to his son with more parenting time than the mother. The judge ordered that if the mother dated or cohabitated with one particular individual, he would not be allowed unsupervised visitation. Moreover, that individual would not be allowed to be a "live-in" babysitter. The father believed it was unsafe for her to expose their son to the new boyfriend’s son under the father’s current visitation. The mother responded with allegations of the father physically abusing the child.
The appellate court held that the evidence supported the trial court’s decision that the new girlfriend was not a good fit for the child. The schedule divided the parenting time so there was no overnights with the new girlfriend’s son. The hallway between their homes was not childproof. The father had a short temper. Additionally, the mother had a short fuse as well, with allegations she pushed a 13-year-old girl who lived in the apartment complex. The mold issue in the home was overwhelming. The mold had to be cleaned. The mother had not been paying her mortgage, and her electricity was disconnected. If she couldn’t pay her mortgage, she was not doing a good job paying bills like childcare. There was also no longer the threat of the mother exposing the son to strangers. Moreover, the mother and her boyfriend engaged in heavy drug use. A change of restrictions was in the best interest of the son.
In comparison, cohabitation could make a difference in determining child support payment amounts. Pursuant to Texas Family Code section 154.123, the trial court may consider and provide an adjustment to any child support payment obligation based on any other reason consistent with the best interest of the child that the court determines is appropriate. Any third-party non-proportional payments to the custodian of a child (non-parent) can be deducted from the amount of child support paid to that person to avoid double-dipping.
In the Texas case of In re Interest of R.M.C., the trial court made findings that the child’s father was residing with a woman and her 16-month-old child. He found that the provision of an automobile, a substantial payment of rent, and a $100 per month grocery payment was "the provision of a material benefit or money to a third party on behalf of children." All the expenses totaled over $700 a month. Since these expenses were only spent during a brief period, the judge ordered child support to be reduced by a union-negotiated cap on monthly dues for the child support obligor.
Recent Legal Rulings and Case Precedents
In the context of premarital agreements, some argue that a mere cohabitation, even without sexual relations, is enough to raise the presumption of a purported common law marriage in the event a dispute ends up in litigation. In Price v. Ins. Co. of the West, 10th Dist. Case No. 07-08-00120-CV, 264 S.W.3d 380, 381 (Tex. App. – Waco 2008, no pet.), the Waco Court of Appeals explained that as long as the parties believed themselves to be married and held themselves out to the public as married, a common-law marriage could form despite a cohabitation relationship. See also State ex rel. D.A.R. v. Jefferson Cnty., 225 S.W.3d 749, 760 (Tex. App. – Beaumont 2007, no pet.) (holding that the statutory time period for the presumption of a common law marriage is tolled pending discovery of the marriage when one or both parties has concealed the marriage). In 2011, the Texas Legislature passed SB 325 – the fourteenth bill in the 82nd Legislature to amend section 160.602 of the Texas Family Code. SB 325 took effect on September 1, 2011 and eliminated Common Law Marriages in Texas after that date thus making any marriage by cohabitation entered into after that date a "Void Marriage." See Texas Family Code ยง6.204 . Despite the elimination of full blown common law marriages, the question remains as to whether cohabitation itself with a lack of formal marriage, and particularly sexual relations, would entitle a partner to some form of civil remedy under specific contracts or at least an informal remedy under the concept of equitable estoppel. Although there has been little recent development of our Common Law Marriage jurisprudence in the wake of SB 325, on April 10, 2017, the Texas Supreme Court heard oral argument in the case of Curbo v. State Farm. Curbo is a personal injury case went to trial. During trial, a document purporting to be a Common Law Declaration was admitted over the defendants objection. The Declaration essentially recited the couple’s agreement to get married, the fact that they lived together for many years and their intention to marry. While the partner of the injured party did not testify, and there was no record of a formal marriage, the couple held themselves out as married and a jury determined that a common law marriage existed. On appeal, the 7th Court of Appeals in Amarillo reversed the trial court and ordered a take nothing judgment for the non-injured party against his partner’s insurance company.