So much for my posting weekly. Obviously I was unable to meet my wild expectations. So for my loyal readers out there, all two of you, I apologize. Now on to more discussions of how to get hitched…followed in the near future with how to rip it all up when it all goes so horribly wrong! What an uplifting topic.
The “Informal” Marriage or Common Law Marriage in Texas
Section §2.401 of the Texas Family Code (I’m going to call it the Family Code or Code from here on out) provides the law governing informal marriages. Generally it states that a man and a woman (very important wording alert) may prove an informal or common law marriage in Texas by showing:
1. They filed a declaration of their marriage with in a county in Texas, or
2. a) They agreed to be married, and after that agreement they, b) lived together in Texas as husband and wife; and c) the represented to others that they were married.
Requirements not mentioned above are that each party must be unmarried at the time of their agreement, otherwise the common law marriage would be void pursuant to §6.202 of the Family Code. You could overcome this if the party or parties that are married end those marriages and then continue live together as husband and wife and hold themselves out as being married. See §6.202(b). The marriage must also be created in Texas and it must be entered into by tow persons over the age of eighteen. The over eighteen provision is important as it relates to the formal marriage discussed in a prior topic where you can get formally married under the age of eighteen.
How do you prove that you agreed to be married? Well, filing a declaration pursuant to number 1 above would solve that problem. Direct evidence would also support that there was an agreement such as testimony by either party that there was an agreement or from some other person that there was an agreement. I can almost guarantee you however that if somebody disputes a common law marriage they are going to deny there ever was an agreement. So if there is no filed declaration and there is a dispute as to an agreement, how else could you prove it? The courts have held that circumstantial evidence can be used to prove an informal marriage. What circumstantial evidence is enough? It is tough to say and it would seem that the courts look at it on a case by case basis.
Living together is pretty self explanatory and should be relatively easy to prove or disprove, but it must be in Texas.
Finally, there is the “holding out” requirement or representing to others that you were married. Again, establishing this is really on a case by case basis. No one set of facts is controlling. Courts have held that both parties must participate in this “holding out” and that an occasional reference to the other party as your spouse is not sufficient. In order for this requirement to be met, the entire world must think you are married.
Once you are common law married, it is as if you went through the more formal marriage discussed earlier. There is no distinction between the two except as discussed below.
The difference between a formal marriage and a valid informal marriage comes when you separate. When you separate under a formal marriage, you are still married. There is no “legal separation” in Texas so theoretically you could remain separated and still married forever. In an informal marriage however, the legislature has said that if you separate in an informal marriage, and you do not file a court action within two years after you separate, it is presumed that there was no informal or common law marriage at all. See §2.401(b) of the family code.
Obviously if somebody files an action within the two years after separation, the court will decide the issue. Likewise, if someone files an action over two years after the separation, the court will still hear the case, the difference is that now the person claiming that there is a marriage has to “rebut” the presumption that no marriage existed. If it was a fifty fifty proposition had it been filed within two years of separation, it would be VERY difficult to rebut the presumption if it was filed after the two years.
What happens if nobody ever files anything? This could really present some serious problems. If both parties go their separate ways never to speak again, then I guess they were never married. However, what if they go their separate ways for 5 years, and during that time the man of that relationship formally marry another woman. Let’s say they have been married for one year and have a child. And what if the former woman of that relationship decides after 5 years she wants to file a divorce suit? We know that she has rebuttable presumption to overcome, but let’s assume she does overcome it and the court finds that there was a common law marriage. OUCH! Now the courts have told this guy he is still married to this woman and his current marriage is void! Oh man would I hate to be that guy. You see the problem that could arise. Let me say this, if you find yourself in this situation, or any part of this situation, contact me at http://www.chrislawyer.com/ (shameless plug) and let me help you through this.
The moral of the above fact scenario, other than you should have contacted me, is that if you find yourself in a similar scenario, hire a lawyer to get a court order finding that you are not married!
One final note on filing a declaration, if you file one pursuant to number 1 above, guess what, you are married! Neither party will have to prove any of the things set out in number 2 nor will the two year filing requirement apply. If you file the declaration, congratulations on your new marriage.
So there it is the informal marriage. Kind of a scary proposition for all you guys and girls out there living with your significant others. My advice? Move the he*& out! Kidding.
Until next week…or month (grin).
The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. No recipients of content from this blog, client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. I expressly disclaim all liability in respect to actions taken or not taken based on any or all the content of this blog. Talk to a lawyer first, preferably me!