Am I Married? – Marital Status in Texas

The big question

Am I Married? – Marital Status in Texas. Seems like a simple question, right? Sometimes however the answer to this question is not always easy. Recently wrote an article “Common Law Marriage and Texas Divorce Guide.”

In that article, I discussed my meeting with a man bewildered by being sued for divorce. When I asked about his case, he plopped down an original petition for divorce and asked, “How am I married?”

We  are going to delve a little more into common law marriage but are going to discuss some other times when the answer to the question Am I Married? – Marital Status in Texas may not always be clear.

Void and Voidable Marriage: Am I Married? – Marital Status in Texas.

A void marriage is a marriage that never existed. A voidable exists until the courts have annulled it.


Two ways that a marriage is void in Texas are:

  1. Where one party is already married to a different person.
  2. The other is under Texas Family Code 6.201 in which the parties are too closely related to each other.


The statutory grounds for annulling a marriage in Texas include:

  1. Marriage Under the Age of 14;
  2. Marriage Under the Age of 18;
  3. Under Influence of Alcohol or Drugs;
  4. Fraud & Duress;
  5. Impotency;
  6. Mental Incapacity;
  7. Concealment—one of the spouses hid something significant from the other;

Voidable – 30 Day Waiting Period

Not all states do not require a divorced person to wait before remarrying, Texas does have a 30 day waiting period after a divorce.

If someone decides not to wait the entire thirty day period and remarries too early, the new marriage is “voidable” and may be challenged for a period of time. Thus the question of Am I Married? – Marital Status in Texas is clear.


An adult is only able to be married to one person at a time all other marriages are void. the Texas Family Code holds that the first marriage is the only valid marriage. Any marriage entered into by a person after the first valid marriage is void by definition.

The consequence of remaining in a relationship while an earlier marriage is still valid means:

  1. you will not have any of the rights or duties to the spouse so long as the earlier marriage is valid.
  2. That means no spousal privilege, no tax benefits for filing as a married couple, no statutory authority to make life-and-death decisions and no right to death benefits.
  3. Instead, legal spouse will retain those rights.

The second marriage that is void can be made valid if the first marriage ends due to death or divorce- if the parties to the second marriage represent themselves as married and live together. That second marriage becomes a common law marriage which begins on the date the earlier marriage is dissolved.

Putative Marriage – Am I Married? – Marital Status in Texas

A “Putative Marriage,” is a marriage that is entered into in good faith by one spouse but that is invalid because of an unknown obstruction to the person claiming to be a spouse.

The “putative marriage doctrine” is used in Texas courts to correct an injustice which might otherwise occur if a marriage is believed to be valid by one or both parties, but is deemed void.

Texas case law suggests that the most common impediment is the existence of a prior marriage of one party to a third party.

Putative marriage exists most commonly arises in two circumstances:

  1. as a result of a divorce proceeding where one spouse challenges the validity of the marriage; and
  2. as a result of the death of a spouse where a putative spouse and a legal spouse claim survivorship rights in the estate of the decedent.

As such the doctrine works as a protective mechanism for innocent persons. The critical distinction is that the marriage itself is not rendered valid, rather, the doctrine allows the innocent party certain property rights in the estate created during the relationship.

A putative spouse has all the rights

Incidents and privileges pertaining to a legally valid marriage, including the right to an equitable division of all property acquired during the relationship in:

  1. a suit for divorce or
  2. in a suit to declare a marriage void.


Palimony is not a legal concept. Rather, it is a popular term used to describe the division of property or periodic support payments paid to one partner in an unmarried couple by the other after the couple breaks up.

The Texas Family Code does not provide for “palimony.”

This means you cannot gain rights under the Texas Family Code because you lived with someone absent a valid marriage.

However, it is possible to draft an agreement which might provide for some of the things that could be obtained with a valid marriage. And answer your question: Am I Married? – Marital Status in Texas.

The Texas Business Code

Allows parties to enter agreements in consideration of “nonmarital conjugal cohabitation”. To be enforceable, these contracts or agreements must be:

  1. in writing and
  2. signed by those who are affected by the agreement.

The Texas Legislature specifically stated that this provision was enacted to curb the number of palimony cases entering the family courts.

Texas Family Code on ‘Palimony’Does not provide for “palimony.” Rights cannot be gained under the Texas Family Code due to cohabitation without a valid marriage.
Alternative AgreementsPossible to draft agreements for some benefits of a valid marriage. Answers the question “Am I Married?” regarding marital status in Texas.
Texas Business Code on Nonmarital AgreementsAllows agreements in consideration of “nonmarital conjugal cohabitation.”
Requirements for EnforceabilityAgreements must be in writing and signed by the affected parties.
Legislative IntentEnacted to reduce the number of palimony cases in family courts.

Same Sex Marriage: Am I Married? – Marital Status in Texas.

On June 26, 2015 the United States Supreme Court issued its ruling in Obergefell v. Hodges, legalizing same-sex marriage in every state of the Union. As I have discussed in other articles Texas is a common-law marriage state.

One of the big questions among Texas Family Law attorneys since the Obergefell v. Hodges ruling is:

What does this mean for same-sex couples who met statutory requirements before the legalization of same-sex marriage in Texas?”

When I attended the Advanced Family Law Conference in 2016 this was one of the big questions however at the time everyone was agreed there was no case law to give us guidance. It was hoped that some cases pending before the Texas Supreme Court would helped to clarify matters once they were ruled on.

Common Law Marriage

In Texas a common law marriage exists when the following elements are met:

  1. a man and woman have agreed to be married;
  2. after an agreeing to be married the spouses lived together as husband and wife in Texas; and
  3. the spouses have held themselves out as being married to the public

The fact that you live together or have children does not automatically mean you are common law married. So the question Am I Married? – Marital Status in Texas should also be clear. The facts and circumstances of each case must be evaluated in order to determine whether a common-law marriage exists. You can read more about this topic in our article “Common Law Marriage and Texas Divorce Guide.”

Book an appointment with Law Office of Bryan Fagan using SetMore
  1. Non-Marital Conjugal Cohabitation Agreements for the Unmarried Couple in Texas
  2. How to get a Common Law Divorce in Spring, Texas
  3. Common Law Marriage and Texas Divorce Guide
  4. Can I sue my spouse’s mistress in Texas?
  5. When is, Cheating Considered Adultery in a Texas Divorce?
  6. Sex, Lies, Rock-and-roll, and Adultery in a Texas Divorce
  7. When is, Cheating Considered Adultery in a Texas Divorce?
  8. Can I Sue My Spouse for Mental Abuse in My Texas Divorce?
  9. 6 things You Need to Know Before You File for Divorce in Texas
  10. Divorce when economic times are tough

Frequently Asked Questions


Share this article