Common Law Marriage More Common Than You Think

Common Law Marriage More Common Than You Think


Texas is one of a number of states that still recognize that a man and woman can have a marriage even though they never had a ceremony or a marriage license. There are many misconceptions about what it takes to have a common law marriage, technically called an “informal marriage” in Texas.
Several times in the past few years our firm has been involved in cases where someone alleged an informal marriage in a family law proceeding. Being married, even informally, can have lots of advantages when it comes to ending a relationship between a man and woman, regardless of whether children are involved. If children are involved, having a marriage, even an informal one, has the advantage of making the children legitimate. Quaint as it may seem in our times, the public policy of the State of Texas is to legitimize a child where possible, even though almost half of children being born now are to single mothers and modern society seems not to punish children who were born out of wedlock.
The advantages of being married, compared to just “living together,” have everything to do with the community property laws. As a community property state, a husband and wife in Texas own all of their marital property as a “community,” meaning they both have an ownership interest in all of the property they have acquired since the marriage began unless a specific rule makes it “separate” property. This can be a great benefit to one party or the other in a family law proceeding when it comes to the court dividing property after a couple separates. If a man and woman are not “married” (formally or informally), then they have no “community” property. Any property they own is either the sole property of one or the other, or, if they indeed do each own part interest in an item, they own it as tenants in common. Let’s take an example.
Joe and Sharon dated for several months and decided to live together. At the time they moved in together, Joe owned a pickup truck and Sharon had a car. They each had separate bank accounts, they each were employed making their own money, and they had their typical personal possessions. After a year they decided to buy a house. Joe, being cautious, bought the house solely in his name but Sharon’s monthly wages helped pay the mortgage. They stayed together for five years and had a son, Joe, Jr. Over the five years they each bought new automobiles in their own names. But over the five years they co-mingled their income and used their combined incomes to pay the car notes, mortgage, utilities, repair and upkeep, etc. After five years they decided to separate.
In this situation, assuming they never were “married,” Sharon could be at a great disadvantage. She has used her income to contribute to the most valuable asset of the union – the house. But without a marriage she may have no more than an equitable claim in the house because it is not in her name and she has no homestead rights as a spouse. The most she could expect is some reasonable reimbursement for her contribution to the equity in the house, IF SHE CAN PROVE THE VALUE OF HER CONTRIBUTION. That may be difficult without receipts, cancelled checks, etc.
However, if Sharon can prove that she and Joe had an informal marriage, the house would be their community property and she wouldn’t have to provide complicated evidence of a much more tenuous interest in the house. The same rule applies for other potentially valuable marital assets, such as retirement accounts, bank accounts, etc. Because even though such things may be held in the name of only one party, it is still community property and the court can divide it in a manner that is “just and right” as opposed to trying to figure out difficult ownership percentages.
So what does it take to have an informal marriage? Texas provides two avenues. First, under the Family Code, a couple can file a “Declaration of Informal Marriage” with the County Clerk on a form provided by the clerk. It sets forth most or all of the information required for a marriage license, but it allows the couple to designate a date on which the marriage began (the couple can essentially “backdate” their marriage). This procedure could have great legal significance for establishing marital property rights, especially in an expected probate dispute, or whether a child born to the couple at an earlier time is legitimate.
The second avenue is for one of the parties to allege the informal marriage as part of a court proceeding, typically as part of a divorce or probate proceeding. There are several requirements:

1. There must be no legal impediment to the marriage (such as one of the parties is already married to someone else, even if separated for many years, or one of the parties is under-aged, or one of the parties is mentally incapacitated);

2. The parties must have a present agreement to be married (as opposed to an agreement to get married at some point in the future)

3. The parties must cohabit together as husband and wife in Texas;

4. The parties must represent to others in Texas that they are married; and

5. The party alleging the marriage must initiate the court action within two years of the last time the parties actually cohabited as husband and wife.

Numbers 2, 3, 4 and 5 are statutory in nature and come from the Texas Family Code. Item 1 stems from case law and interpretations of other Texas statutes that prohibit a person from being married to more than one person at a time (the anti-bigamy statute in the Texas Penal Code). Item 1 is also pretty simple. Either someone has the capacity to marry or they do not. If they were previously married to someone else, you have to prove that previous marriage was legally ended, either by annulment, divorce or death.
Item 2 is the most often disputed in court cases, especially where one party is claiming to be married to the other party in a family law proceeding. One party claims the marriage existed and the other denies it. The agreement is almost never in writing (unless perhaps stated in a love letter), so it is one party’s word against the other party’s word. To get past this hurdle, Texas courts have held that proof of Items 3 and 4 (cohabiting and representing to others) can be used as proof of the agreement, even where one party denies the agreement.
Cohabiting is usually pretty simple. The couple sets up housekeeping together and have conjugal relations. Having children together while living together will pretty much cinch that issue from an evidentiary standpoint.
One of the other most litigated issues is whether the parties represented to others that they were married. Isolated acts of calling the other person “my wife” or “my husband,” or failing to correct others when they refer to the couple as being married, is usually not enough, although that certainly helps. The best evidence of holding out is filing government documents that represent the couple as being married, such as joint income tax returns, or buying titled merchandise together and listing both as owners, buying land or a house together and stating in the title documents that the couple is “husband and wife,” or listing the other person as a spouse on hospital admission forms or insurance applications. Merely checking into a motel as “Mr. and Mrs. Smith” on one occasion will not do it (contrary to what a lot of people believe). The more acts of holding out that are present, the more likely it is that a court will find that a marriage existed.
Recognizing informal marriages greatly benefits parties and the courts, especially in this modern day when many couples simply decide to live together, stay together many years, and then decide to end their relationship. For all practical purposes they are married and courts go to great effort to recognize that conclusion. But it still requires evidence and proof.

Having a formal possession order is important when parents do not live together

Having a formal possession order important when parents don’t live together

If you have a child but are not married to the other parent, having a formal possession order through the courts can prevent serious legal problems. Several recent cases prompt us to advise parents in this circumstance to get that done now instead of later.

CASE # 1: Eight years ago John and Freda (not their real names) separated and Freda disappeared, leaving their two-year-old son in John’s care. John went on with his life, but never filed a divorce action. After eight years on the lamb, Freda showed up one day at the child’s school with a copy of the child’s birth certificate and checked the child out of school. Because Freda was the child’s natural parent and there was no order on file preventing her from taking the child, the school had no choice but to release the child to her. She then disappeared with the child. It cost John several thousand dollars in attorney’s fees and private investigator expenses to track Freda down and get a court order to recover the child.

CASE #2: Five years ago Susan and Joe (not their real names) were living together. They had a child, Joe Jr., and both were listed on his birth certificate as the parents. Three years ago they split up and went their separate ways. Joe Sr. moved to another state with his new girlfriend. They continued to share custody of Joe Jr. informally. This arrangement seemed to work okay until it came time for Joe Jr. to start school. At that point, Susan insisted on keeping Joe Jr. most of the time so he could attend school. Joe Sr. did not like this arrangement because it meant that he could not spend as much time with his son. He threatened to take the child permanently to live with him. Fearing that he would snatch the child, Susan insisted that his next visit be in a public place and be supervised by her. During the visit Joe Sr. took the child and ran. Without a formal court order the police could and would do nothing to prevent it. It is suspected that Joe Sr. has taken Joe Jr. to the other state and he is refusing to divulge where the child is living. It will now cost Susan thousands of dollars in attorney’s fees and private investigator fees to recover her child. And if she waits too long to take action, she may have to do it in the other state.

Both of these situations could have been avoided if the parents had gotten a formal possession order before the other parent decided to abscond with the child. Without such an order each parent has an equal right to possession of the child and the police will usually not get involved to stop one parent or the other from running with the child or hiding the child.

If two parents who are married separate, as in Case No. 1, they should file for a divorce and as part of that divorce the court can and will make appropriate orders for the conservatorship, possession of, and support of the child(ren). If two parents are not married to each other, as in Case No. 2, they can still get a court order concerning their children by filing what is known in Texas as a “Suit Affecting the Parent-Child Relationship (SAPCR).” In either case, the Court will issue orders that set forth the rights and duties of each parent with respect to the child(ren), when each parent is allowed to have possession of the child(ren), and how the child(ren) will be supported.

The Attorney General of Texas has offices across the state and a large support staff whose sole purpose is to help parents obtain support for their minor children. Even if you can’t afford a private attorney to file a divorce or SAPCR, the AG’s office can still assist you in getting these orders, including conservatorship and possession orders. The only problem with using the AG’s services is that the AG is much more concerned with the issues of child support and medical support for the child. The AG’s office is really not equipped to deal with the finer issues of conservatorship and possession disputes. A private attorney can deal with all three areas in detail, and if one of the parents is ignoring the court’s orders concerning conservatorship or possession in some respect, a private attorney can usually take quicker action to enforce the court’s orders.

Finally, having a court order concerning conservatorship, possession and access may not prevent a parent from running with a child in the first place, but if they do, they are committing a felony and you can much more easily get the police involved to help recover your child.

So the lesson learned is that spending the money now to get a formal possession order can save many thousands of dollars and weeks or months of drama later.

Slow Down or Change Lanes

SB 193 requires drivers nearing stopped emergency vehicles-with lights activated -to either slow down or change lanes. The law states a driver must either vacate the lane closest to the stopped emergency vehicle if the road has multiple lanes traveling in the same direction or slow down 20 miles per hour below the speed limit. (If the speed limit is below 25 mph the driver must slow down to 5 mph.)
Emergency vehicles include police, emergency medical service and fire vehicles. A violation is punishable by a maximum fine of $200. If the violation results in property damage, the maximum fine increases to $500. If the violation results in bodily injury, the offense is enhanced to a Class B misdemeanor.
Although, the law was passed in the last regular session of the Texas Legislature and went into effect Sept. 1, 2003, many officers were not enforcing this law.  Since the time the law went into effect many officers and other emergency vehicles have been struck while assisting other drivers.  The state of Texas will be enforcing this law. 

Just be courteous and pull into the next lane or slow down.  We all realize that slowing down 20 miles under the posted speed in some areas will slow traffic dramatically and cause a backup but what is 5-10 minutes on your drive compared to someones life?

Welcome to The Owen Law Firm Blog

We represent clients on a wide variety of legal issues, including divorce and family law, all areas of criminal law including DWI and drug offenses, business and commercial law, federal bankruptcy and immigration law, real estate law and all areas of general civil litigation.

Our firm provides free consultations in most instances and we offer a wide variety of payment options. Call for an appointment today. Weekend and evening consultations are available by appointment.