Usually, in a Texas divorce case, both parties know and agree that they were married. In some cases, however, the parties may disagree as to whether there has been an informal marriage. An informal marriage can be proven by showing that the couple agreed to be married, subsequently lived together in Texas as spouses, and represented themselves as married. TEX. FAM. CODE ANN. § 2.401. Texas courts have held that evidence that the parties held themselves out as married must be particularly convincing and be more than occasional references to each other as husband or wife.
A mother recently challenged a court’s finding that she had not been informally married to the father of her children. The couple had two children together, one who was six and the other who was 21. The mother petitioned for divorce, arguing that she and the father married on or about 1996. In his answer, the father stated there was no existing marriage.
At the hearing, the mother testified that she believed she and the father had agreed to be informally married when they moved in together. She said the father introduced her to his friends and family as his wife. She admitted, however, that she always filed her taxes as single. She also conceded that her name was not on the deed to the house, and it instead named the father and his father as the owners.
The mother’s oldest son testified he thought the couple was married because they had a relationship and two children together. He testified that the father had introduced him as his wife’s son once.
The father testified that he lived with the mother more than 20 years. They had two children. He testified they had not agreed to be married, however, and the mother had not introduced him as her husband. He testified that he stayed with her because his father told him to and he did not want a stepfather to raise his child. He also testified that they had never filed a tax return together as a married couple.
The father’s father testified that the couple lived with him for three years. He said they did not have an agreement to be married and his son had represented the mother as his wife. He also said the mother told him she was in charge because she did not have a husband and that she and the father did not have a commitment.
The trial judge expressed “great concerns” over the father’s credibility, but found the mother had not met the burden to show the couple agreed to be informally married. The court therefore found the home they lived in to be the father’s separate property.
The mother appealed. She pointed to the length of the relationship, cohabitation, and their children in common. She also raised the issue of the trial court’s concerns about the father’s credibility. The mother testified the father “always” introduced her as his wife, but she did not provide evidence that their reputation in the community was that of a married couple. Her son had not provided sufficient evidence to support either an agreement or holding out as a married couple. The father and his father both testified that the couple had not held themselves out as married.
There was conflicting testimony before the trial court. The court had expressed concerns about the father’s credibility, but had not questioned the credibility of the father’s father. It is the trial court’s role to determine the credibility of the evidence.
The mother had the burden of proving by a preponderance of the evidence that she and the father had an informal marriage. To succeed on appeal, she would have to show that the trial court’s finding was against the great weight and preponderance of the evidence so as to be clearly wrong and unjust. The trial court found she had not met this burden and affirmed the trial court’s order.
If you are facing a separation from a potential informal marriage, an experienced Texas family law attorney can help you protect your rights and assets. Contact McClure Law Group at 214.692.8200 to discuss your case.
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