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How to Protect Yourself or Your Client from Denial of Judicial Recognition of Obergefell Retroactivity in Common Law Marriage

If you haven’t already read my blog post on Obergefell retroactivity, I would go back and look at it from yesterday.

Fret not; these cases are sporadic. You must be in a gay relationship, which predated June 26, 2015, and has not gotten married, seeking a divorce, or someone has passed away. If you do, however, find yourself in this precarious situation, consider the following:

  1. Get Married

This is the most simple and obvious answer. If you are married, then common law marriage is never an issue for you, and you don’t have to worry about the issue entirely.

  1. Venue is Key

If you are not a resident of any common law marriage states, consider moving to one that recognizes common law marriage. Texas and Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Utah, and the District of Columbia recognize common law marriage. Becoming a resident of these jurisdictions differs from one state to another, but living in a state for three months is a good rule of thumb. Make sure you get a driver's license from your new state.

  1. Civil Procedure is Everything

Make sure your Jury Charges are airtight. See the Texas case Hinojosa v. Lafredo , No. 05-18-01543-CV (Tex. App. Jun.2, 2021).

If you lose, file a writ of Habeus Corpus in Federal court for a Due Process claim.


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