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Articles Posted in Common Law Marriage

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Texas recognizes common law marriages. To have a common law marriage, the parties must have agreed to be married, must have lived together as spouses after that agreement, and presented themselves as married.  When most people think of common law marriages, they consider couples who were never formally married.  However, in a recent case, a man sought a Texas divorce from his ex-wife, alleging there was a common law marriage after their original divorce.

The parties married in 2000 and divorced in 2005.  They lived together until at least 2006 and had children together in 2006 and 2007. They worked together.  Although they agreed that the relationship changed in 2012, they did not agree as to what happened later.  The husband claimed they moved back in together by the end of 2013 and continued their relationship until late 2014.

The husband filed for divorce in 2015. The wife moved for summary judgment on the grounds that they were not married.  She argued they did not meet the requirements of a common law marriage. She offered affidavits the parties signed in 2013 indicating they were not married, did not live together, and had not held themselves out as married.  In her deposition, she had denied living with the husband.  She also pointed out the husband was unable identify the exact date of an agreement to be married.  She also relied on documents in which the husband indicated he was divorced and not married, including a bankruptcy petition filed under oath.

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In Texas, an informal or common law marriage can occur if the couple executed an informal marriage agreement pursuant to Texas law or agreed to be married and subsequently lived together as married in Texas and represented to others that they were married.

A Texas court recently found that a couple did not have an informal marriage, despite filing their taxes as “married filing jointly.” The couple began dating in 2003 or 2004.  The man proposed in 2005, and the woman accepted.  They moved to Texas together in 2006.  They wanted to build a horse clinic where the man would practice veterinary medicine and the woman would train horses.  They purchased property together and built the clinic.  They had joint bank accounts, but the bookkeeping for each business was kept separate.

They filed joint tax returns indicating they were “married filing jointly” from 2006 to 2013.  They co-habitated until 2013.  The woman filed for divorce in 2015.  After a bench trial, the trial court found the couple did not have an informal marriage and dismissed the divorce case.  The woman appealed.

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The legalization of same-sex marriage may only be a few months old, but Texas’ informal marriage laws may provide for marriage recognition dating back decades. On June 26, 2015 the United States Supreme Court issued its ruling in Obergefell v. Hodges, legalizing same-sex marriage in every state of the Union. Since the rendering of the Court’s ruling, counties across the state of Texas have issued thousands of marriage licenses to same-sex couples. Upon receipt of a marriage license, these couples become eligible to enter into formal marriage. However, Texas also recognizes informal marriage, frequently referred to as common law marriage. Texas allows parties to an informal marriage to hold, as their legal wedding date, the earliest date at which all statutory requirements of an informal marriage were satisfied. What does this mean for same-sex couples who satisfied the statutory requirements before the legalization of same-sex marriage in Texas?

Under the Texas Family Code, an informal marriage may be proved by evidence that: (1) a declaration of marriage has been signed; or (2) by showing that the parties agreed to be married and after the agreement they cohabited together, in Texas, as a married couple, and represented themselves to others, in Texas, to be married. (see Texas Family Code 2.401). Upon satisfaction of the second prong, the couple may file a declaration of marriage and list, as their date of marriage, the earliest date at which all requirements were concurrently satisfied. Of course, same-sex couples are now afforded the ability to enter into informal marriage. The question is, however, will same-sex couples who satisfied all requirements of the law be allowed to declare their marriages to a date prior to June 16, 2015?

Initially, it was believed that state officials would hold that same-sex common law marriages could not be dated before June 26, 2015, as same-sex marriages were void ab initio under the law. However, with respect to a recent declaration of marriage filed by a same-sex couple in Tarrant County, Texas, the Texas Department of State Health Services stated that “Applicants, regardless of gender, may apply for an informal marriage license using any date applicable to their relationship.” Accordingly, this Tarrant County couple was allowed to date their informal marriage to 1992.

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