Skip to content 
Same-sex couples in long-term relationships often face legal challenges when proving common law marriage, especially if the relationship began before Obergefell v. Hodges in 2015. Courts interpret Obergefell Retroactivity differently, leaving some without legal recognition of their unions. That uncertainty can create problems in divorce cases, inheritance claims, and other legal matters where marital status matters. Without clear protections, couples risk losing rights they assumed were secure. Knowing how courts handle these cases and what steps strengthen a claim can make a difference in protecting relationships and securing legal recognition.
Understanding Obergefell Retroactivity and Common Law Marriage
Legal recognition of same-sex relationships has changed, but some courts still challenge whether Obergefell v. Hodges applies retroactively, especially in common law marriage cases. Those in long-term relationships that began before June 26, 2015, may struggle to prove their unions existed. This issue often arises in divorce cases, inheritance disputes, and other legal matters where marital status affects rights and responsibilities.
Why Some Courts Deny Retroactive Recognition
Obergefell v. Hodges established the constitutional right to same-sex marriage, but it did not clearly state if this ruling applies retroactively. Courts have different interpretations, leading to inconsistent rulings. Some judges argue that states had no obligation to recognize same-sex common law marriages before 2015. Others believe denying retroactivity violates constitutional rights. Understanding this legal divide helps individuals prepare for possible challenges.
The Most Effective Solution: Legal Marriage
The simplest way to avoid disputes over common law marriage is to get legally married. Courts universally recognize licensed marriages, removing any uncertainty. Legalizing the relationship protects spousal rights in areas such as inheritance, healthcare decisions, and survivor benefits. Those who have not yet married should consider doing so to prevent legal complications.
Relocation to a Common Law Marriage State
For couples unable or unwilling to marry, moving to a state that recognizes common law marriage may help establish legal standing. The following states currently acknowledge these unions:
- Texas
- Colorado
- Iowa
- Kansas
- Montana
- New Hampshire (only for inheritance)
- Oklahoma
- Rhode Island
- Utah
- District of Columbia
Residency requirements vary by state, so researching specific laws is essential. In most cases, living in a state for a few months and obtaining a driver’s license strengthens residency claims.
Strengthening a Common Law Marriage Claim
If relocation is not an option, gathering evidence to prove the existence of a common law marriage is critical. Courts consider factors such as:
Cohabitation
Length of time living together as a couple
Mutual Agreement
Verbal or written statements affirming intent to be married
Public Representation
Evidence that both partners presented themselves as married
Shared Finances
Joint bank accounts, property ownership, or tax returns listing marital status
Legal Documents
Wills, power of attorney, or insurance policies naming the partner as a spouse
Providing substantial proof can influence a court’s decision when seeking legal recognition.
Legal Strategies for Disputing a Denial
If a court refuses to recognize a same-sex common law marriage, strategic legal action can strengthen the case.
Selecting the Right Venue
Where a case is filed can significantly impact the outcome. Some courts have a history of recognizing same-sex common law marriages. Attorneys should research past rulings before proceeding.
Crafting Strong Jury Charges
Well-prepared jury instructions increase the likelihood of a favorable ruling. Cases such as Hinojosa v. Lafredo (No. 05-18-01543-CV, Tex. App. Jun. 2, 2021) provide insight into successful legal arguments. Studying similar cases helps attorneys refine their approach.
Constitutional Claims and Federal Appeals
If a state court denies recognition, federal action may be necessary. Filing a writ of habeas corpus in federal court allows individuals to challenge rulings based on due process violations. This approach argues that refusing to recognize same-sex common law marriages violates constitutional rights. Seeking legal counsel experienced in federal litigation is essential for this step.
Preparing for a Legal Challenge
Building a strong case for retroactive recognition requires thorough preparation. These steps help strengthen legal arguments:
- Consult an Attorney – A lawyer familiar with same-sex marriage laws can provide guidance.
- Gather Documentation – Compiling evidence of a long-term relationship helps establish the marriage.
- Research Jurisdictional Precedents – Understanding how different courts rule on similar cases helps in venue selection.
- File Correctly and Promptly – Missing legal deadlines can weaken a case.
The Importance of Proactive Legal Protection
While Obergefell v. Hodges marked progress, gaps in legal interpretation create challenges for same-sex couples. Those in common law marriages must take steps to protect their rights. Legal marriage remains the most effective option, but for those who cannot marry, strategic legal action and proper documentation increase the chances of judicial recognition.
Understanding the risks and preparing accordingly helps individuals secure the legal protections they deserve.
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “16 Steps to Help You Plan & Prepare for Your Texas Divorce“
If you want to know more about how to prepare, CLICK the button below to get your FREE E-book: “13 Dirty Tricks to Watch Out For in Your Texas Divorce, and How to Counter Them” Today!“
Other Articles you may be interested in:
- Roadmap of Basic Divorce Procedure in Texas
- How Can I Get My Spouse to Pay My Attorney’s Fees in a Texas Divorce?
- How am I going to Pay for My Texas Divorce?
- Should I Hide Money from my Spouse to Get Ready for my Texas Divorce?
- 6 Tips – On How to prepare for a Texas Divorce
- What are the Steps of a Contested Texas Divorce, and How can I Prepare for Them?
- Can I get child support while my Texas divorce is pending?
- 6 things You Need to Know Before You File for Divorce in Texas
- What living arrangements may lead a judge to conclude that you are common law married?
- The rights of Lesbian, Gay and Transgender parents in Texas family law cases
- Common Law Marriage and Texas Divorce Guide
