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Texas Common Law Marriage after Divorce

divorceTexas 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.

To show they did not live together, the wife provided evidence of the husband’s tax filings from 2007 and 2014, his driver’s license, and his voter registration.  These documents showed a different address than that of the wife.  The wife also used these same documents to show the couple had not held themselves out as married.

The husband offered his own affidavit and deposition, the declarations of twelve other people, and cards from the wife.  His affidavit stated the couple agreed to divorce to protect her from his creditors.  He alleged they had agreed to be married after the divorce, but wanted to keep the relationship from the creditors.  He stated they indicated they were not married and lived separately in formal documents, but presented themselves as married to friends and their families.

He claimed they continued to live together and share expenses after their divorce.  The couple had two children together.  The declarations from various friends and associates stated the declarants had heard the parties refer to each other as husband and wife.  Many stated they had seen the couple living together.  The husband also provided cards and letters from his wife referring to him as “husband.”

The trial court granted the wife’s motion for summary judgment, and the husband appealed.

The wife argued she should receive the benefit of the rebuttable presumption that there was no agreement to be married when a divorce petition is filed more than two years after the parties separate.  The husband had presented declarations of individuals who stated they had observed the couple living together in 2014.  The appeals court found there was an issue of fact as to when the couple finally separated.  The wife was not entitled to the presumption.

The appeals court then considered the elements of common law marriage.  The court first considered whether there was an agreement to be married.  The couple had filed a joint tax return as a married couple in 2011.  The wife had filed an amended return, but only after the husband had filed for divorce.  She gave the husband anniversary cards referencing him as her husband in 2008 and 2010.  She wore her wedding ring sometimes.  The court noted evidence of an agreement to be married may be circumstantial.  The evidence was sufficient to raise a genuine issue of material fact.

The court then considered whether the parties lived together as spouses.  The husband stated they lived together until 2012 when they separated, but they moved back in together in 2013 until another separation in 2014.  There were multiple affidavits stating the couple lived together, including one from the nanny and another from the landscaper.  The couple had two children during the period the husband alleged they lived together. The wife had given the husband the anniversary cards during that period.  The husband stated they paid bills out of each other’s accounts.  The appeals court found, however, the documents submitted by the wife reflected a different address for the husband raised a fact question rather than conclusively showing the parties lived separately.

The appeals court then considered whether the parties represented themselves as married.  They had received awards together that referenced them as a “husband and wife team.” Furthermore, the wife held herself out as the husband’s wife when she bought auto insurance in 2014.  The declarations stated the declarants knew the couple and understood them to be married.  Several of the individuals stated they had met the couple after their original divorce, but observed them living together and had heard them refer to each other as husband and wife.

The appeals court found the husband had provided more than a scintilla of evidence of each of the elements of common law marriage, and the wife had failed to disprove any of them.  The appeals court reversed the summary judgment and remanded.

In this case, the conflicting information as to the nature of the parties’ relationship precluded summary judgment.  If you are separating from a long term partner and believe there is a common law marriage, an experienced Texas family law attorney can help you determine if a divorce is needed.  Call McClure Law Group at 214.692.8200 to discuss your case.

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Same-Sex Couples and Common Law Marriage

Property Distribution After Dissolution of a Texas Common Law Marriage

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