How to Get a Notarized Common Law Marriage Affidavit in Texas

To get a notarized common law marriage affidavit in Texas, you have two routes. The cleanest is filing a Declaration of Informal Marriage with your county clerk, who administers the oath and certifies the document on the spot. The other is drafting a separate sworn affidavit and signing it before a notary public, which couples typically do when they need proof for a benefits application, a probate matter, or a legal dispute and have not filed a Declaration. Either document has to accurately reflect the three legal elements Texas requires, or it won’t hold up.

The Three Elements Your Document Must Prove

Under Section 2.401 of the Texas Family Code, an informal marriage exists when you and your partner (1) agreed to be married, (2) lived together in Texas as spouses after that agreement, and (3) represented to others in Texas that you were married.¹ There is no minimum cohabitation period. The agreement has to be a present commitment to be married from that point forward, not a plan to marry someday.

Both parties must be at least 18. Neither can be currently married to someone else. And neither can be related to the other as a parent, child, sibling, aunt, uncle, niece, nephew, stepparent, stepchild, or first cousin, whether by blood or adoption.² Every affidavit or Declaration should track these elements directly.

Route One: File a Declaration of Informal Marriage

The most reliable option is the Declaration of Informal Marriage under Section 2.402 of the Texas Family Code. It uses a state-prescribed form, and once signed and filed with the county clerk, it carries the same legal weight as a marriage license and certificate.²

The form contains a printed oath both parties sign. Each spouse swears that they agreed to be married on or about a specific date, lived together as spouses after that date, represented to others in Texas that they were married, and have not married anyone else since the date given.

You do not need a separate notary. The county clerk witnesses the signing and certifies the document, and it becomes part of the public record.

What to Bring to the Clerk

Both parties must appear together in person. Bring:

Government-issued photo ID (driver’s license, state ID, or passport) for each party.
Full legal names, including maiden surname if applicable, dates and places of birth, addresses, and Social Security numbers.
The date you and your partner consider your marriage to have begun. Both of you must have been 18 or older on that date.
The filing fee, which varies by county. Expect roughly $30 to $50, and confirm with your local clerk before you go.

Route Two: Draft a Separate Sworn Affidavit

A standalone affidavit is a different document, used when the Declaration route doesn’t fit the situation. Common reasons include applying for spousal benefits, settling a property dispute, handling an estate, or supplying proof to a federal agency when you never filed a Declaration. Texas Health and Human Services, for instance, uses its own Form H1057 to verify a common law marriage date in benefits cases where the couple did not file with the county clerk.³

A useful affidavit tracks the statutory elements plainly. Include:

Full legal names of both parties, dates of birth, current addresses, and the date you agreed to be married.
A clear statement of mutual agreement to be married, specifying when and where the agreement was made.
The addresses where you lived together and the approximate dates at each location.
Specific examples of holding out as married: joint tax returns, a shared last name, listing each other as spouses on insurance or employer forms, beneficiary designations, and introductions to family and community.
A sworn statement that neither party was married to anyone else during the relationship and that both parties were at least 18 when the marriage began.

Use your full legal names consistently. Specifics carry weight; vague timelines don’t. “We agreed to be married in March 2019 and moved into an apartment at 1200 Oak Street, Austin, Texas” reads very differently from “we started living together a few years ago.”

Supporting Evidence to Gather

An affidavit is stronger when documents back it up. Before you sign, pull together records that corroborate each element:

For cohabitation: a shared lease or mortgage, utility bills in both names, and mail addressed to both parties at the same address.
For agreement and holding out: joint tax returns, shared bank accounts, insurance policies naming the other as a spouse, beneficiary designations, children’s birth certificates listing both as parents, and social media referring to each other as spouses.
Third-party statements from family, friends, or neighbors who witnessed you living as a married couple. These help most when documentary evidence is thin.

No single document is required. A consistent pattern across multiple areas of life is far more persuasive than one or two isolated records.

Getting It Notarized

If you go the Declaration route, skip this section. The county clerk handles the oath. If you’re using a separate affidavit, you need a notary public.

Both parties must appear in person before the notary. Texas law requires the notary to physically witness the signing; notarizing a document without the signer present is prohibited. Each signer presents a government-issued photo ID or a U.S. passport.⁴ The notary confirms identity, watches both parties sign, and applies the official seal, which shows “Notary Public, State of Texas,” the notary’s name, commission expiration date, and notary ID number.

A notary cannot give legal advice, draft your document for you, or tell you what the affidavit should say. Their role is limited to verifying identity and witnessing signatures. If you want the wording reviewed, talk to a family law attorney before the notary appointment.

The Two-Year Deadline If You’ve Separated

If you and your partner separate and stop living together, Texas law creates a rebuttable presumption that no informal marriage ever existed unless a legal proceeding is filed within two years of the separation.¹ You can still try to prove the marriage after two years, but the burden shifts against you: a court starts from the assumption that no marriage existed. A Declaration filed while you are still together avoids the problem entirely, because the Declaration itself is independent proof. If you have already separated without one on file, get legal advice quickly.⁵

What Happens If the Affidavit Isn’t Truthful

A false statement in a sworn affidavit is perjury under Texas Penal Code Section 37.02, a Class A misdemeanor.⁶ Conviction carries up to one year in county jail, a fine of up to $4,000, or both.⁷

If a fraudulent affidavit is used to collect benefits, insurance, pension payments, or an inheritance share the person isn’t entitled to, separate fraud charges can apply, and higher dollar amounts can push the case into felony territory. The opposing party in a property dispute or probate case can also sue for civil damages, and a court may order restitution. Every statement in the affidavit should be truthful and specific enough that you could back it up with documentation if challenged. If you aren’t sure your relationship meets the legal standard, talk to a family law attorney before signing anything under oath.

1
State of Texas. Texas Family Code 2.401 – Proof of Informal Marriage
2
State of Texas. Texas Family Code 2.402 – Declaration and Registration of Informal Marriage
3
Texas Health and Human Services. Form H1057 – Declaration of Informal Marriage
4
Texas Secretary of State. Notary Public Educational Information
5
Texas State Law Library. General Information – Common Law Marriage
6
State of Texas. Texas Penal Code 37.02 – Perjury
7
State of Texas. Texas Penal Code Chapter 12 – Punishments