Common Law Marriage in Texas
In Texas, a common law marriage is a legal marriage that does not require a traditional ceremony or the obtaining of a marriage certificate. A valid common law marriage is not the same as a "non-marital personal relationship" and is a traditional "marriage" under the law.
In Texas, a common law marriage is legally referred to as "informal marriage." Pursuant to Section 2.401 of the Texas Family Code, there are three necessary elements for a valid common law marriage in Texas. The three elements are:
A common law marriage in Texas does not require that the agreement and cohabitation occur at the same time. Pursuant to the Texas Family Code , the couple can enter into an agreement to be married at any time during their cohabitation. Similarly, the parties can reside together after or during marriage; a lack of cohabitation alone does not invalidate a common law marriage.
The third element, holding out to the public as being married to each other, requires the parties to hold themselves out as a married couple to the world. For example, signing and filing a joint tax return as a married couple or calling each other "husband" or "wife" is sufficient to hold out to the public as being married.
Legal Reasons to Dispute Common Law Marriage
There are several grounds to challenge a common law marriage. In general, the evidentiary burden shifts to the party claiming a common law marriage when a party denies the existence of the common law marriage. Sometimes the evidence is not the clearest or the most persuasive of evidence and therefore there is no clear evidence concerning some of the elements of the common law marriage. For that reason it may be wise to pursue trial and discovery of the issue of whether a common law marriage existed and that is why a court will sometimes bifurcate an issue and create a trial within a trial to determine the existence of a common law marriage In a bifurcated trial setting, a jury will first sit on the common law marriage threshold issue of whether or not the parties prior to the stated date of separation had agreed to be married and whether or not they had held themselves out to the public as being married.
In Cohen v. Brookshire Groc. Co., 320 S.W.3d 829, 833 (Tex. App.—Houston [1st Dist.] 2010, no pet.), the First Court of Appeals held that a common law marriage can be refuted if the party claiming the marriage was not competent to enter into a marriage at the time the couple allegedly agreed to marry.
The court also stated that a mutual "hold out" exists where the parties jointly reported themselves to be married to outsiders. See also Garcia v. Vega, 483 S.W.3d 484, 496 (Tex. App.—San Antonio 2016, pet. denied). In Garcia, the court further stated that "[e]ach situation must be viewed in context by considering all the facts and circumstances surrounding a couple’s voluntary relationship."
The hold out element of common law marriage can be disputed if neither the husband nor wife made statements or presented themselves in any manner to indicate a marriage to others. See Hardy v. Hardy, 368 S.W.3d 398 (Tex. App.—Houston [14th Dist.] 2012, no pet.). In Hardy, there was some evidence showing that the parties did not hold themselves out as married to each other or others.
Collecting Evidence to Disprove Common Law Marriage
One of the most common ways to disprove the existence of a common law marriage is to present evidence to show that the parties do not meet the qualifications for a common law marriage. This can be done via a variety of evidence, including financial records, affidavits from other people, or evidence that the parties maintained a separate residence. Ultimately, whether or not you’re able to disprove a common law marriage will depend on the quality and quantity of the evidence presented.
A financial record that you can use to help disprove common law marriage is a tax return. If you file taxes jointly, it can be difficult to prove that a common law marriage doesn’t exist. However, if you and your spouse file taxes as individuals, you may be able to use this to help show that marriages between you and your spouse didn’t exist. Because filing a joint tax return results in an overall tax benefit, many simply choose to only file as a single taxpayer, even if they are common law married.
Documents related to your residence can also help demonstrate that you and your spouse are not common law married. For example, if you own your home and your spouse only lives there at particular times, this can be helpful evidence for you to present in your case. In another example, let’s say you and your spouse have separate properties. One person lives exclusively in one, and another person lives in another. If one of you files for a school district exemption, then you can show that you’re both claiming to be separate residents for educational purposes.
Recently, affidavits from other people have been used to help prove that you are not common law married. For example, you can call witnesses to testify in favor of your side of the case. Perhaps a family member of yours has observed the relationship between you and your spouse. Your sister may have visited the house and seen separate rooms. It helps to have evidence that stretches across multiple different third parties, as well as evidence that demonstrates on its face that a common law marriage does not exist.
Disproving a common law marriage can be very difficult, especially if your spouse has been working to gather evidence without your knowledge. If your spouse has already called your relatives and friends, gathered financial documents showing that you’ve lived together in the past, and obtained copies of your tax returns, then your chances of proving a lack of existence are diminished.
Disputing Common Law Marriage With Attorneys
Given the potentially contentious and complex nature of a claim of common law marriage in Texas, it is often important to seek the assistance of an experienced, knowledgeable attorney. When considering legal action to dispute a common law marriage claims, a professional can meet with clients to review the details of the situation and recommend a course of action . Attorneys can frequently assist by providing clients with information on how they will need to respond to a motion, may know which questions commonly arise during a contested hearing and can offer some idea of what level of proof is usually required to disprove common law marriage claims. Most importantly, the vast majority of common law marriage disputes in Texas ultimately necessitate hearing before a judge. This means that in most cases, an experienced attorney will represent clients at the contested hearing before the Judge.
Common Myths Around Common Law Marriage
Given the complexity of common law marriage in Texas and the number of requirements that must be met for such a marriage to exist, it is not uncommon for individuals to believe, or at least wonder, whether they are in a common law marriage with their partners. While you can certainly meet all requirements for a common law marriage in Texas, there are a number of common misconceptions that could lead you to believe, incorrectly, that you have a common law marriage.
The intent to marry.
This is actually the most common misconception, as people tend to believe that the intent to marry is simply obvious because they have lived together for any length of time. However, the intent to be married does not depend on living together; rather, the intent to be married is the one requirement with which everyone consciously agrees. In short, if either party does not intend to be legally married after a certain time period, you are simply living together, and you do not have a common law marriage.
Good faith.
Generally, courts will not enforce a common law marriage if one of the parties acted in bad faith. Bad faith goes beyond the mere intent to be married and actually depends on the actions of one of the parties in relation to the validity of the marriage. If a person believes the existence of a common law marriage to be true, and later tries to assert that belief simply to get out of a contract, that is an action based in bad faith. So, while it is a good idea never to assume that you are in a common law marriage until you are certain, it is also a bad idea to try and use a common law marriage to avoid contractual obligations.
Disproving Common Law Marriage in Court
Court Procedures for Proving or Disproving Common Law Marriage
An informal marriage is established by signing a declaration of informal marriage. Section 2.401(a)(1) of the Texas Family Code defines an informal marriage, commonly referred to as common law marriage, as one in which a person demonstrates three elements:
- Prior to the individual’s or individuals’ signature on the declaration of an informal marriage, there existed an agreement between the individuals to be married; and
- After the agreement, the individual or individuals represented to others that the individual or individuals were married; and
- The individual or individuals met the requirements under section 2.301(a)(1) or (2) [or (3)] of the Family Code.
Failure to meet any one of the components outlined above will result in a finding that no informal marriage ever occurred . In other words, all three elements must be present at one time and genuinely agreed upon by all of the individuals involved.
In Texas, an informal marriage can be proven by filing the Declaration of Informal Marriage with your county’s Clerk’s Office. However, if you never filed an informal marriage certificate but you believe you have previously established a common law marriage, you will need to bring a suit for declaratory judgment to determine if the common law marriage ever existed. Under section 2.501 of the Texas Family Code, if you plan on filing suit, you must do so no later than 2 years after the the day you cease to live together as a married couple.
Once you have filed your suit, the court will be responsible for conducting a declaratory judgment proceeding to determine whether the elements that make up a common law marriage are present. Any party may seek a judgment declaring whether the parties have established an informal marriage.