Recently, I had a consult involving an informal marriage or common law marriage. The wife was concerned about what rights she had.
Her story involved verbal abuse, physical abuse, and an altercation that resulted in the police being called. The husband was ultimately removed from the marital home.
Her husband was now threating to take her car.
Understandably, the wife was upset for a lot of reasons but her most immediate concern was the car. From asking questions, I learned that the car was just in her husband’s name, but she had been making all the payments and had been the only one using the car.
There was also a marital home but that was just in her name. Her husband was also threating to get a lawyer and:
- Force her to sell her home and
- Take her car
The wife wanted to know if he could do that.
What is Common Law Marriage?
We have discussed the topic of common law marriage and common law divorce previously in other blog posts. I will post links to some of those posts later in this article for further reading.
In short, a common law (or informal) marriage is a legal marriage without a ceremony or other formalities.
The legal requirements for a common law marriage can be found in section 2.401 of the Texas Family Code. It states that a common law marriage is one in which no formal marriage ceremony was held, no marriage license was obtained, and the parties have:
- Agreed to be married
- Live together in Texas as husband and wife
- Hold themselves out to others in Texas as husband and wife
What is Community Property?
One of the things I try and do in all my consults with potential clients is to educate them what it means for Texas to be a community property state.
On its most basic level, the general rule regarding community property is that anything you have accumulated from the minute you are married until the minute you are divorce is 100% yours and 100% your spouse’s. I generally will draw a circle and write 100% in that circle.
Whose Name is on Something Means Nothing When it is Community Property
People hear me say that but they still generally do not exactly understand. To help them further understand, I will then write things in the circle such as:
- Your Income
- Your Spouse’s Income
- Bank accounts in your name
- Bank accounts in your spouse’s name
- A house in just your spouse’s name on it
- A house with just your name on it
- Toothpaste (I usually get a halfhearted chuckle when I say this one)
How Long You Have Been Separated Does Not Change the Rules of Community Property
I will sometimes hear the excuse of “we have been separated” or “we have already divided up everything, so we do not have any property together.” At this point in my consults, I will explain that does not change anything because they are still married.
To help my consults understand, I will tell a few stories. One of them usually includes a wife I met prior to the Harvey Flood. She had not seen her husband in 20 years. During that time, she:
- Bought a house
- Paid off the house with just her income
- House was just in her name
She met someone new and wanted to marry him but couldn’t because she was still married to her old husband. I then asked my consult to guess what her husband wanted. They always guessed correctly: “the house.”
I then tell them how the wife asked me “…this is so wrong. What could I have done to prevent this?” I told her, “divorced him 20 years ago.”
Proving a Common Law Marriage
Back to the consult from the beginning of the story. After I got done explaining the rules of community property to her, I said the big issue with a common law marriage is proving the existence of the marriage. I started asking her:
- Did you ever file taxes together?
- Were you on each other’s health insurance?
- Share bank accounts?
The answers were:
- Not any more
The wife then produced an affidavit of informal marriage that both she and her husband had signed. I told her that will do it.
What is a Declaration of Informal Marriage in Texas?
If you and your spouse agree, the two of you can sign a ‘Declaration of Informal Marriage’ and file it with the county clerk.
Under Texas Family Code Section 2.401(a)(1), the county clerk serves as prima facia evidence that the parties have entered an informal marriage.
One thing a Declaration of Informal Marriage allows a couple to do is choose the date of their marriage.
The Issue of the Date of the Marriage and Separate Property
The date of the wife’s marriage became an issue during my consult with her. As explained earlier there was a house. The house was just in the wife’s name. However, under community property rules, whose name is on something does not matter if it was acquired during the marriage.
Separate Property in Texas is:
- Property acquired before marriage,
- Property acquired during marriage by gift, devise, or descent
- Property acquired during the marriage but purchased with separate property funds
If a spouse can prove one of the above, they exclude that property from division during the divorce.
The wife wanted to say:
- The house was her separate property because it was just in her name and
- She wanted to say the car was marital property despite it being in just her husband’s name
What I told her is that whose name was on anything did not matter if they were married unless a spouse could prove it was separate property. If they were not married whose name was on something would matter.
Marriage Date was Problematic
I also explained that the house being her separate property was problematic because she and her husband had chosen a marriage date on their “Declaration of Informal Marriage” that was prior to her buying the house. This would mean her house was community property if they were married.
Is a Common Law Marriage Just as Good as a Ceremonial Marriage?
This upset my consult. She did not like her house being community property. She told me, “but it’s only a common law marriage. Why can he get my house? It is only in my name.”
When she said that, I knew she was not understanding what I was saying. I decided to try giving her an analogy. I told her if you have sex with someone and get pregnant you are pregnant. If you go to the doctor and get pregnant by in vitro fertilization, you aren’t any less pregnant
I told her common law is like that. “You are not any less married just because it is a common law marriage.”
You Can Only be Married to One Person at a Time
She then threw me a curveball. “But what if he was already married to someone else?”
“That,” I said, “would make a difference.” Through further discussion, I found out that around the time of their “marriage,” he may have already been married. I then got on the district clerk’s website and looked up her husband’s divorce.
What I found out is that his divorce was not finalized until after my consult had purchased her house. This would mean she could not have been married to her “husband” at the time she purchased the house, which would make her house separate property.
Texas Family Code Section 6.202 states that:
(a) A marriage is void if entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse.
Can a Void Marriage Because Of Bigamy Later Become Valid?
A that is marriage void because of bigamy can later become valid. Texas Family Code Section 6.202 states that:
“The later marriage that is void under this section becomes valid when the prior marriage is dissolved if, after the date of the dissolution, the parties have lived together as husband and wife and represented themselves to others as being married.”
For the purposes of my consult’s situation, once the impediment to her valid marriage was taken care of, her marriage became validated on the basis of common-law marriage.
This would mean her house was separate property and the car was community property. After I got done meeting with her, I felt like I had just completed a law school exam.
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Other Articles you may be interested in:
- Common Law Marriage: How to avoid being or getting married without your intent
- Frequently Asked Questions Regarding Common Law Marriage and Divorce
- Frequently Asked Questions Regarding Texas Marriage
- Non-Marital Conjugal Cohabitation Agreements for the Unmarried Couple in Texas
- Common Law Marriage and Texas Divorce Guide
- How to get a Common Law Divorce in Spring, Texas
- Am I Married? - Marital Status in Texas
- Can I sue my spouse's mistress in Texas?
- When is, Cheating Considered Adultery in a Texas Divorce?
- 6 things You Need to Know Before You File for Divorce in Texas
- Common Questions about Texas Prenuptial and Marital Agreements
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