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The Dirty Trick of the Common Law Marriage

In Texas, many people are aware that Texas recognizes common-law marriage. However, not everyone I meet with is aware of what it takes to meet the Texas statutory requirements of being common law married or why it is important.

I have had some consults recently that made me think this topic should be included in any discussion regarding divorce tricks because when used, whether successfully or not, it can cause major aggravation, be very expensive, and take a lot of time defending it.

Scenario #1 – You May Be Married if you Tell People you are and Act Married

Recently, I was meeting with a man who was bewildered that he had been sued for divorce. When I asked him about his case, he plopped down an original petition for divorce and said, “I want to know how I am married.”

"Am I married?" Seems like a simple question, right? Sometimes, however, it is not. I asked him “Have you ever had a ceremonial marriage?” He said “No.” I then started asking him the following questions:

Q: “Have, you ever lived together?”

Answer: “Yes.”

Q: “Have, you ever introduced each other as being husband and wife?”

Answer: “Yes, out of convenience.”

Q: “Have, you ever filed taxes together?”

Answer: “Well, we have kids together, so I filed as head of household and claimed her and the kids on my tax return.”

I let him know that he and his ex may be common-law married. "Common-law marriage is something that exists in Texas, although it is called Informal Marriage under the Family Code."

Scenario #2 – Be Careful Cohabitating After a Divorce

I generally will caution my clients about cohabitating after the divorce. This is because someone who ended up hiring us came in very confused after his wife had sued him for a divorce.

The reason for his confusion was because he already divorced her. His ex-wife and he had only been married for a few years and divorce had netted her practically nothing by way of a property settlement. This was because of their short-term marriage, the fact that they had no children, each took from the marriage whatever they brought and not much more.

Not long after the divorce, his ex-wife fell on hard times and he felt sorry for her, so he let her move back in the home. She did not have a job or access to health insurance, so he got her added to his insurance policy by telling them they were married.

As a result, his ex-wife had the benefit of his dental coverage, hospital, medical, surgical, and all other insurance. His wife scheduled herself appointments at the dentist, ophthalmologist, and plastic surgeon.

His ex-wife ended up getting:

  1. Dental surgery
  2. Lasik surgery
  3. A facelift
  4. A tummy tucks
  5. Breast enhancement

This gentleman told me his ex-wife convinced him that all these things were a good idea and he would benefit from them. He also gave in partly out of guilt regarding the divorce.

He also conceded to help her buy a new wardrobe. Eventually, he did start to protest as the bills started to rack up. Whenever he did, she would fly off the handle and guilt him. While they had only been married previously for three years, they stayed together after the divorce for six years.

When his ex-wife filed for divorce again, as previously mentioned, it took my consult by surprise because he thought he had already divorced her. He never considered that Texas common-law marriage law might force him to divorce her again.

As explained how Texas common-law marriage worked, he let me know he would not make the same mistake again.

Scenario #3 – Doing a Cost-Benefit Analysis

Our law firm has represented clients both for and against a common law divorce. Some of these cases have ended up going to trial. This includes twice before a Jury. In the majority of family law cases, it makes economic sense to settle a case before it ever reaches the trial stage. This is because the longer a case drags on, the more expensive a case is.

Jury trials also tend to be more expensive than trials before a judge. One big reason for this is that jury trials often take longer to try. At the very least, there is an extra day to pick the jury. However, there is often more stopping and starting when a jury is involved.

This is because some arguments take place outside of the jury’s ears.  This means the bailiff must escort the jury outside the room. Alternatively, the judge will call the lawyers to come back to the judge’s chambers. All these things often add up to several more days of trial.

Having defended and tried cases involving the issue of a common-law marriage, I can say with experience that it makes a case quite a bit more expensive. On the low end, if a party contests the existence of a common-law marriage, it adds at least another $20,000. However, if the case has to be taken to trial, that number can easily double or triple.

For this reason, I will often do a cost-benefit analysis with my clients if they want to defend against the existence of a common-law marriage. If the “marriage” is short and there wouldn’t be a lot of common law property, it may be quite a bit cheaper just to admit there is a marriage and divide up what little community property there is.

In a consult, a gentleman came to meet with me to get a second opinion. He was currently represented and had been defending against a common-law marriage. The man had already spent about $60,000 and hadn’t made it trial yet. I also found out it was going to a jury trial.

From my discussions with this man, I was able to pinpoint that if they were married, it had only been for about three years. This was because prior to that time period, he had been married to someone else. In Texas, you can only be married to one person at a time, so it was impossible to be married until after his divorce took place.

The man was concerned that if he admitted marriage then his new “wife” would get a large portion of his assets. From questioning, it did not sound like there was much community property. The majority of his assets would be his separate property.

It also sounded like had created a really nice paper trail for a common-law marriage. He had emailed someone that the woman in question was his wife. He told me “I just did that so she could sell / show my house. She doesn’t have a real estate license.” The man had also listed the woman in his will as his common law wife.

From what I was hearing, it sounded like this many was basically spending $1,000 for every dollar he was trying to save.

Scenario #4 - A Common-law marriage is Just as Good as A Ceremonial Marriage

A while back, I met with a gentleman and he was deeply concerned that his wife may get a portion of the fortune he could acquire after he got a patent and his invention went on the market. From talking to him, I learned his marriage was a common-law marriage.

Once I learned he had a common-law marriage, I started to ask him questions. When I went through my usual questions, it started to sound like he might not have a common-law marriage. I then asked him why he thought he might be married. “Well, we signed an affidavit of informal marriage.”

Through further discussions, the gentleman was hoping I would tell him that a common-law marriage was not as good as a ceremonial one. I let him know a common-law marriage is just as good as a ceremonial marriage.

This upset my consult. He did not like hearing that his patent may be community property. He told me, “but it’s only a common-law marriage. Why would she be entitled to my patent? It is only in my name.”

When he said that, I knew he was not understanding what I was saying. I decided to try giving him an analogy. I told him, “If you have sex with someone and get them pregnant, are they any less pregnant than if they go to the doctor and get pregnant by in vitro fertilization?”

I explained to him common-law marriage is like that. “You are not any less married just because it is a common-law marriage.”

My consult concluded that he should never have signed the affidavit of informal marriage. Apparently, his wife had convinced him that it would a good idea for them sign the affidavit. However, he never felt like he had benefited from the affidavit and only she had.

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.

Is Common-Law Marriage a Texas Thing?

In the above consult, the man was extremely frustrated that Texas had laws that recognize the common-law marriage. However, Texas is not the only state. The following states have laws regarding common-law marriage:

Alabama

Colorado

District of Columbia

Georgia (if created before 1/1/97)

Idaho (if created before 1/1/96)

Iowa

Kansas

Montana

New Hampshire (for inheritance purposes only)

Ohio (if created before 10/10/91)

Oklahoma (possibly only if created before 11/1/98.

Pennsylvania (if created before 1/1/05)

Rhode Island

South Carolina

Texas

Utah

The Texas Statutory Requirements for A Common-Law Marriage

An informal or common-law marriage is a marriage between two people who have not obtained a marriage license and participated in a marriage ceremony and under Texas Family Code Section 2.401:

  1. Agree to be married
  2. Live together in Texas as husband and wife and
  3. Hold themselves out to others in Texas as husband and wife

Agreement to be Married

One of the elements to establish a common-law marriage is the parties must agree to be married.

This means that in an evidentiary hearing, the spouse alleging a common-law marriage will need to put on evidence that the parties intended to have a present, immediate, and permanent marital relationship wherein they both agreed to be husband and wife.

An agreement to get married at some later time in the future is not sufficient to establish an agreement to be married. If there is no written agreement to be married, your actions and the actions of the other party can be used to prove that there was an agreement to be married.

Living Together

The next element needed to establish a common-law marriage is that the parties must have lived together in Texas as husband and wife.

Texas case law states that to meet the element of living together as husband and wife, you must demonstrate that you maintained a household and did things that are commonly done by a husband and a wife.

There is no minimum number of days you must have resided together in Texas to meet this requirement.

Holding Out

The final element needed to establish a common-law marriage is that parties must have told other people in Texas that they were married.

This can be accomplished either by:

  1. Spoken words or
  2. Actions and conduct by each person may be enough to fulfill the requirement of holding out.

In other words, there can be no secret common-law marriage.

Is There A Statute of Limitations on Establishing A Common-Law Marriage?

No. Contrary to what some people believe, there is no statute of limitations for establishing a common-law marriage. Provided that the elements are met that:

  1. There’s an agreement to be married
  2. The couple tells other people about it and
  3. The couple could live together for even one day

This could be enough to establish a common-law marriage.

Legal Effect of a Common-Law Marriage

If a common-law marriage exists, it has the same legal significance as a ceremonial marriage. This means:

  1. You would have to file for divorce when the relationship ends just as you would if you had a ceremonial marriage.
  1. Once a common-law marriage is established, the only way to end it is by death, divorce, or annulment.
  1. There is no such thing as a common-law divorce.
  1. If a common-law marriage exists, then all property and debts accumulated during the duration of the common-law marriage that are community property are subject to division by the court at the time of the divorce.

Alternatively, a couple can file a “declaration of informal marriage” under Texas Family Code Section 2.401(a)(1) with the county clerk as prima facia evidence that the parties have entered an informal marriage.

Practically speaking, if there are children resulting from a common-law marriage or property acquired during the term of the marriage, as a divorce is sometimes the best and easiest way to dissolve the relationship.

One example of this is from a case where I represented a mother who, in addition to having a child with the father, purchased a home with him. Unfortunately, when I looked at the elements to see if we could establish a common-law marriage, there was no evidence in support.

It was easy enough to establish orders regarding the child. Unfortunately, disentangling her from the house could not be accomplished at the same time and had to be pursued in a different lawsuit. This was frustrating for her because the father was living in the house rent-free and was not paying any of the bills.

Why You May Want to Deny the Existence of a Common-Law Marriage

The main reason people want to prove that a common-law marriage exists is stuff or property. They want to divide up property that may have been acquired during the marriage.

That happens to also be the most common reason why someone wants to deny the existence of a common-law marriage. They want to avoid allowing their alleged spouse from getting community property rights over any of the property.

If the party with most of the property can prevent the existence of a common-law marriage being proven, then the alleged spouse has no rights to their property.

Proving Two People Are Common-Law Married

One of the biggest ways a common-law marriage is different than a ceremonial marriage is, if it is contested, the spouse alleging a marriage will need to put on proof.

If the marriage is contested, it may be necessary to have a mini-trial or evidentiary hearing on the existence of the marriage. If the jury or judge finds in favor of a marriage, then the divorce process will proceed as normal.

Some evidence of a common-law marriage could include:

  1. Filing a federal income tax return with the other person named as your spouse;
  2. Obtaining a life insurance policy and identifying the other party as your spouse and designating them as beneficiary;
  3. Purchasing a home or other real property where the deed is signed by you and the other person as husband and wife;
  4. Taking out a loan with the other person being identified as either your husband/wife;
  5. Sending cards or letters to the other party that state “from your loving husband,” or “to my loving wife;”
  6. Hosting or attending an event where you introduce the other person as your spouse;
  7. Your family members referring to a spouse as their son-in-law or daughter-in-law;
  8. Introducing the other person to your colleagues, neighbors, and/or friends as your husband/wife.

Does Texas Recognize Common-law marriages from Other States?

Maybe. To prove the existence of a marriage that purportedly occurred in another state or foreign country, the party alleging a marriage will need to perform a foreign-marriage analysis.

This is done by answering a series of questions aimed at determining whether Texas Law or the law of the foreign state or country applies and whether under that law, the requirements for proving up a marriage have been met.

These questions include:

  1. Were the marriage requirements met under the law of either state?
  2. Which state’s law controls?
  3. Texas Public Policy
  4. Full Faith & Credit Clause

Public Policy

If a Texas court refuses to recognize a foreign marriage because it violates Texas public policy, the parties to the foreign marriage can return to the state or country where the marriage took place and seek a divorce there.

Full Faith & Credit

Under the full faith and credit clause, each state must give full faith and credit to the judicial proceedings, public acts, and records of other states.

Some Texas courts have held that because marriage is not a judicial judgment and is more like a contract or a license, a marriage in one state has never been considered constitutionally entitled to automatic recognition in other states.

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Law Office of Bryan Fagan, PLLC | Spring Divorce Lawyer

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with ar Spring, TX Divorce Lawyer right away to protect your rights.

A divorce lawyer in Spring TX is skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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