The outbreak of the Novel Coronavirus, COVID-19, has put a stop to all social gatherings right now—including weddings. While many brides are preoccupied with whether or not they need to change their color-scheme from spring to fall or the best way to store a wedding dress, a far more important consideration is:
How does a postponement legally affect your relationship with your fiancé?
Are you “informally married”?
In the eyes of the law, you and your fiancé may end up informally married even if your carefully planned nuptials are cancelled—whether you realize it or not.
Texas law provides that two people can be common law, or informally, married—even without a ceremony or marriage license—if at the same time, they (1) agree to be married, and, after the agreement, (2) they live together in Texas as spouses, and (3) in Texas represent themselves to others that they are married. There is no “common law divorce” or “informal divorce” in Texas. In the case of divorce, a Texas court would ultimately need to make two findings: (1) the existence of an informal marriage, and (2) the date the informal marriage began.
There are many reasons—religious, personal, financial—that you may not wish to have an informal marriage with your fiancé.
Here are a few questions to help you determine whether an informal marriage may exist:
- Are you engaged, have obtained your marriage license, and then postponed your wedding ceremony?
- Are you living together in Texas?
- Are you calling each other “wifey” or “hubs” already?
- Have you purchased or leased real property that lists both of your names on the title or lease?
- Are you filing your federal income tax returns as married?
- Have you received a stimulus check from the federal government based on your married status?
- Have you updated your social profile—with a profile picture featuring you and your fiance—to remove the coveted “single” status, without replacing it with another indication such as “independent”?
- Are you representing to your neighbors, friends, colleagues and family members that you are married? Or, are you failing to correct them if they refer to your fiancé as your spouse?
- Are you sharing a financial account (or credit card) listing both of you?
- If Covid-19 has forced a bankruptcy, are you filing as married or single?
If you answered “yes” to some or all of these questions, keep reading.
Cohabitation Agreement: Do I need one?
If you think an informal marriage claim is something your fiancé could bring against you, you may consider entering into a cohabitation agreement to curtail the financial and emotional impact of a potential break-up. A cohabitation agreement is a contract between unmarried persons that outlines what constitutes a marriage between unmarried persons, and how jointly acquired assets and liabilities will be divided in case of a break-up.
Disclaimer: Unlike more commonly-known agreements like a premarital agreement (agreement on division of property before marriage, effective upon divorce) or a partition or exchange agreement (agreement on division of property after marriage but before divorce, effective upon divorce), what parties may (and may not) agree to in a cohabitation agreement is not specifically spelled out in the Texas Family Code. Also, courts have not actively addressed the enforceability of cohabitation agreements. As a result, enforceability and real-world application of cohabitation agreements are fact-specific, and should be thoughtfully drafted and discussed with a family law attorney—and maybe a business law or corporate attorney—to ensure you fully understand the risks of entering into one.
3 Common Terms in Cohabitation Agreements
- What constitutes a marriage?
A cohabitation agreement can include a provision that spells out what constitutes a marriage. If enforceable, a cohabitation agreement may serve as a defense to a claim of “informal marriage” in the eyes of the law. Specifically, a cohabitation agreement can spell out what must occur for the parties to be married (such as a formal marriage ceremony), and may protect against the unintended consequence of exposure to an informal marriage claim down the road.
- Who gets the house (and other jointly acquired assets/debts)?
Many couples aim to start their lives by their blessed wedding date. They may already live together, or they have planned to move in together shortly after their wedding and have already started the process of closing on a house or signing a lease as a married couple. (It is not uncommon for couples who come in for a premarital agreement, to have already purchased a home together that lists both parties on the title, even though one party did not contribute financially to the purchase, resulting in a partial gift of the real property to the other spouse.) Protections for the party who made the financial contribution can be written into a premarital agreement or cohabitation agreement to prevent an unfair and unintended consequence if the parties ever file for divorce.
Fur babies! Among other jointly acquired assets and liabilities, jointly acquired pets are also often a source of contention in case of a break-up. A cohabitation agreement may include a “possession schedule,” terms for covering vet bills and food, and even terms for an appropriate send off to fur baby heaven.
- Who foots the bill for cancelled wedding costs?
Unreimbursed deposits for the wedding cancellation may also result in a disproportionate debt-load on one party. Ensuring these costs are appropriately divided by agreement may offer some reprieve to the party who put the flowers and reception food on a tab in his or her sole name.
Considering the possibility of a future break-up, even before the wedding, may be difficult but can prevent real heartbreak down the road.