the informal or common law marriage

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.

Getting Married

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 (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!

15 Responses to the informal or common law marriage

  1. melissa November 9, 2009 at 10:54 pm #

    ok i have a question and need an answer pretty bad? me and my guy planned on getting married on november 21,2009 invations and the whole nine yards. we had been living together have a lease agreement in both our names cell phone bill in both our names and on october 24,2009 he commited suicide…… how can i get a common law marriage certificate because we were according to the law or what do I do now?

  2. Anonymous November 9, 2009 at 11:08 pm #

    hay i need help if someone could answer a question? me and my guy lived together had a lease in both our names cell phone bill same thing. we were getting married novemeber 21,2009 had the church booked invations out the whole nine yards well on october 24,2009 he commited suicide, so now what do i do? can i get a common law marriage certificate?

  3. Chris Schmiedeke November 10, 2009 at 8:19 am #

    Melissa, unfortunately it sounds as if you were not common law married. You are missing the key part of "holding yourself as married" as evidenced by your plans to get married in late November.

    I am sorry for your loss.

    As for anything else I post on this blog, I do not know ALL the facts, so it is always best to track down a local attorney and run your case by them.

    Good luck.

  4. Anonymous December 4, 2009 at 2:22 pm #

    Ok so if you are the fool who married someone who later the ex came back to file common law court found their to be common law married the court said our marriage is voidable but we would have to go throught the process to void it but we do not want too. So know the previous ex and my husband have been dealing with their divorce know for over two years know and his ex is still trying to take our house. I want to know if I the new wife have any rights to my martial residence? Do I have rights as the court see's my marriage valid?

  5. Anonymous February 1, 2010 at 4:48 pm #

    Chris…If a man and woman in Texas were married 10 years, had 2 kids, got divorced, then got informally married again a year after their divorce finalized. Would there be a benefit to do that for child support payments sake on the guys part?(like he doesn't want to pay?) or if the man wants to collect unemployment benefits since he has been out of a job?

  6. Chris Schmiedeke February 2, 2010 at 11:35 am #

    Anonymous, I am not sure what you are asking. A father is liable to support his child as is the mother, whether they are married or not. If the child lives with him, he is supporting the child.

    I have no idea what unemployment benefits has to do with it.

  7. Anonymous February 2, 2010 at 1:40 pm #

    I guess I am wondering why someone would get "informally remarried" instead of getting "formally married" again?

  8. Gayla Smith April 11, 2011 at 7:47 am #

    My husband and I were married June 17, 1972 (lubbock texas). We had 3 children together. In February 1998 a divorce was granted in Colorado. Prior to February and after February until June 30 1998 we all resided at the same address Oakwood street in Westminster Co. On June 30th I moved to Arlington Texas to take a job, I became mentally unstable in September (first week) and left the apartment with just the clothes on my back, my father had to return to move my belongings back to the home on oakwood. My husband and I resided at the same addresses until his death in 2004 from ALS. The death certificate lists me as his wife, the 2003 income tax records were filed jointly. Because of Colorado State Law we did not have joint accounts, a wife can go to prison if her husband writes a bad check, when i returned home in September i was under treatment for mental health issues for quite some time and still am. For almost a year and a half I could function at low levels at home, i could attend classes if I did not get into relationships with class mates. I could not pay bills, make financial decisions, etc. in fact i really couldn’t even make parental decisions. My college course work was in art so was more therapy than study. In 2004 My husband was diagnosed with ALS I had graduated and was certified to teach art. He was terminally ill, our youngest child was turning 17. I got a job teaching in Texas, our oldest daughter remained in colorado with her boyfriend and his family Bob, our son and youngest daughter moved into the anderson st house together, the home was purchased in my name and cosigned for by bobs dad because of the ALS. Bob was very concerned that any real property in both our names might cause loss of the property to pay eventual medical expenses. Family and Friends saw us as husband and wife, but we never actually remaired officially with the preacher …we did talk about it but bob was too ill when we thought about applying for a marriage certicate. We made plans to look at houses in San Antonio so he could be closer to care. We planned on taking a handicaped fishing trip in october. he died in August while in the va hospital for less than 8 hours pending a routine test. I had to drop a wrongful death suit in 2004-2005 because the attny did not want to pursue a torte case. In 2008 widdows of veterans with ALS were able to file for widdows survivors kids insisted i do this. My file has been pending for almost 2 yrs now. I have had to answer specific questions about (length of time we lived apart) and was honest I may not have known the stree numbers of the addresses but i pretty much named every street we ever lived on clear back to 1992. I am concerned that they may not consider us husband and wife because of the divorce and wonder what i need to prove common law. Also we did not have bank accounts together in colorado…again because bob was not good at keeping accounts and i was affraid of going to jail if he bounced a check. And we did not have joint account in texas because he was affraid with ALS that they might take the joint assests to cover medical stuff..(reading about savings accounts and ALS on the internet was really spooky to both of us) so the bank accounts things worry me…his ss checks were deposited into my checking account.

  9. Gayla Smith April 11, 2011 at 7:52 am #

    My husband and I were married June 17, 1972 (lubbock texas). We had 3 children together. In February 1998 a divorce was granted in Colorado. Prior to February and after February until June 30 1998 we all resided at the same address Oakwood street in Westminster Co. On June 30th I moved to Arlington Texas to take a job, I became mentally unstable in September (first week) and left the apartment with just the clothes on my back, my father had to return to move my belongings back to the home on oakwood. My husband and I resided at the same addresses until his death in 2004 from ALS. The death certificate lists me as his wife, the 2003 income tax records were filed jointly. Because of Colorado State Law we did not have joint accounts,because of the ALS when we moved back to texas we did not have joint accounts. His benefit checks were deposited in my checking account at his request.

  10. Gayla Smith April 11, 2011 at 7:57 am #

    I am filing for widows pension based on recent determinations that ALS is a presumptive condition and is now service connected. My application has been pending since sept 2009. I have answered questions about every time we were apart and for what reasons we were apart i have answered with every street name we ever lived on together even if I may not recall the complete address. The last home we lived in was in my name but cosigned for by his father. I am concerned and would like to know what further proof I may have to submit if they come back on me for proof of common law marriage.

  11. Chris Schmiedeke April 20, 2011 at 7:07 am #

    You would have to take that up with them. You will have to meet their requirements, whatever they may be.

  12. Mimi October 28, 2013 at 5:26 pm #

    Chris if you did a church blessing is this grounds for you being an informal marriage? or you would have need to request for a marriage license? Because it was a blessing there is no certificate or declaration actually nothing to prove legally. So is this considered a legal marriage state of texas?

  13. Chris Schmiedeke November 14, 2013 at 8:51 am #

    Read my post. If you meet all the requirements for an informal marriage then you are married.

  14. Pamela July 11, 2017 at 6:04 am #

    I am in a predicament. My common law husband died and wanted his body donated to science, which I did. He made me promise that I would make sure that everything was done before I informed his Mother or brother, both of which he hated. I thought that I had done that, I found a place to take him and he was already there before I called either. Now both being bitter and spiteful are not going to let me have his ashes. We always presented ourselves as married and I even have a credit card with his last name as mine. I made him promises as to what I would do with those ashes and any help you could give me would be of great value. Thanks

  15. Anonymous August 24, 2017 at 11:33 pm #

    An ex has filed for divorce and we are not common law. We lived together for a brief period of time but never held out as husband or wife nor shared any bank accounts or did joint income taxes. I have letters he wrote voicing he wants to marry me and I have gathered several information to disprove his allegations. I simply broke up with him and now he is being spiteful and claiming to take half of everything I own. How does the legal proceedings work? Do we have a set court date just to disprove a marriage? He is fighting for temporary restraining orders to have exclusive rights of the home (which is my home im the name on the deed). Does court try the temporary orders first? How can I prove I’m not married before he kicks me out of my own house?!!!

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