Tuesday, March 07, 2006

the informal or common law marriage

So much for my posting weekly. Obviously I was unable to meet my wild expectations. So for my loyal readers out there, all two of you, I apologize. Now on to more discussions of how to get hitched…followed in the near future with how to rip it all up when it all goes so horribly wrong! What an uplifting topic.

Getting Married

The “Informal” Marriage or Common Law Marriage in Texas

Section §2.401 of the Texas Family Code (I’m going to call it the Family Code or Code from here on out) provides the law governing informal marriages. Generally it states that a man and a woman (very important wording alert) may prove an informal or common law marriage in Texas by showing:

1. They filed a declaration of their marriage with in a county in Texas, or
2. a) They agreed to be married, and after that agreement they, b) lived together in Texas as husband and wife; and c) the represented to others that they were married.

Requirements not mentioned above are that each party must be unmarried at the time of their agreement, otherwise the common law marriage would be void pursuant to §6.202 of the Family Code. You could overcome this if the party or parties that are married end those marriages and then continue live together as husband and wife and hold themselves out as being married. See §6.202(b). The marriage must also be created in Texas and it must be entered into by tow persons over the age of eighteen. The over eighteen provision is important as it relates to the formal marriage discussed in a prior topic where you can get formally married under the age of eighteen.

How do you prove that you agreed to be married? Well, filing a declaration pursuant to number 1 above would solve that problem. Direct evidence would also support that there was an agreement such as testimony by either party that there was an agreement or from some other person that there was an agreement. I can almost guarantee you however that if somebody disputes a common law marriage they are going to deny there ever was an agreement. So if there is no filed declaration and there is a dispute as to an agreement, how else could you prove it? The courts have held that circumstantial evidence can be used to prove an informal marriage. What circumstantial evidence is enough? It is tough to say and it would seem that the courts look at it on a case by case basis.

Living together is pretty self explanatory and should be relatively easy to prove or disprove, but it must be in Texas.

Finally, there is the “holding out” requirement or representing to others that you were married. Again, establishing this is really on a case by case basis. No one set of facts is controlling. Courts have held that both parties must participate in this “holding out” and that an occasional reference to the other party as your spouse is not sufficient. In order for this requirement to be met, the entire world must think you are married.

Once you are common law married, it is as if you went through the more formal marriage discussed earlier. There is no distinction between the two except as discussed below.

The difference between a formal marriage and a valid informal marriage comes when you separate. When you separate under a formal marriage, you are still married. There is no “legal separation” in Texas so theoretically you could remain separated and still married forever. In an informal marriage however, the legislature has said that if you separate in an informal marriage, and you do not file a court action within two years after you separate, it is presumed that there was no informal or common law marriage at all. See §2.401(b) of the family code.

Obviously if somebody files an action within the two years after separation, the court will decide the issue. Likewise, if someone files an action over two years after the separation, the court will still hear the case, the difference is that now the person claiming that there is a marriage has to “rebut” the presumption that no marriage existed. If it was a fifty fifty proposition had it been filed within two years of separation, it would be VERY difficult to rebut the presumption if it was filed after the two years.

What happens if nobody ever files anything? This could really present some serious problems. If both parties go their separate ways never to speak again, then I guess they were never married. However, what if they go their separate ways for 5 years, and during that time the man of that relationship formally marry another woman. Let’s say they have been married for one year and have a child. And what if the former woman of that relationship decides after 5 years she wants to file a divorce suit? We know that she has rebuttable presumption to overcome, but let’s assume she does overcome it and the court finds that there was a common law marriage. OUCH! Now the courts have told this guy he is still married to this woman and his current marriage is void! Oh man would I hate to be that guy. You see the problem that could arise. Let me say this, if you find yourself in this situation, or any part of this situation, contact me at http://www.chrislawyer.com/ (shameless plug) and let me help you through this.

The moral of the above fact scenario, other than you should have contacted me, is that if you find yourself in a similar scenario, hire a lawyer to get a court order finding that you are not married!

One final note on filing a declaration, if you file one pursuant to number 1 above, guess what, you are married! Neither party will have to prove any of the things set out in number 2 nor will the two year filing requirement apply. If you file the declaration, congratulations on your new marriage.

So there it is the informal marriage. Kind of a scary proposition for all you guys and girls out there living with your significant others. My advice? Move the he*& out! Kidding.

If you would like to know more about me, or see my new blog, please visit www.theDallasDivorceBlog.com.

Until next week…or month (grin).

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. No recipients of content from this blog, client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. I expressly disclaim all liability in respect to actions taken or not taken based on any or all the content of this blog. Talk to a lawyer first, preferably me!

119 comments:

texastwin827 said...

Chris, I like your sense of humor! So let's see what you would do with this situation!

1986-1989 Man & woman begin a common law marriage. During that time, they have joint bank statements, file FEDERAL tax returns/extensions and even a FEDERAL Bankruptcy Court accepts their 1986 Chapter 13 filing. Friends/family know them as husband & wife.

1989 They separate...wife files for divorce, husband "disappears" to avoid child support, case is dismissed "for lack of prosecution"....

Fast forward to 2005...Husband dies in AZ, wife (who is in TX) files for Widow's benefit on his Soc Security. Soc Sec denies claim using the "one year" provision of the 1989 revision of Texas common law marriage...the one that was ruled unconstitutional in White v. State Farm Mutual

So would her marriage have been considered to have already been legally "proven" back in 1986 when the Federal Court recognized she and the husband's marriage in their Bankruptcy case? (and YES, the wife has all this documentation)

If 1989 law was unconstitutional and can not be applied and 1995 law can not be applied retroactively, then isn't the only one that can be applied to the situation, those that existed before 9/1/1989??? Have fun!

Chris Schmiedeke said...

Texas Twin, thanks for the comment. I have a hard enough time keeping the blog up to date, let alone taking a quiz. I'll try to look at it shortly and respond.

Chris Schmiedeke said...

I give up, what is the answer?

Robert said...

The answer is screw the social security. Fake your own death and leave your beneficiary on your life insurance policy to some illegal immigrant. Make them step forward to claim your winnings, and split it with them so they have money for a trip back home.

Start a new life and move on. OR better yet consult a tax attorney.

Chris Schmiedeke said...

Dang it...I almost said that!

Anonymous said...

Chris, great source of information. Question is as follows:

Man and woman (neither never ever married before) enter into a common law marriage in Texas in 1996...they think. Have child, 9 years ago. Buy a home (in husband's name only), buy additional investment property (husband's name only), have joint credit cards,joint social memberships, and numerous other public documentations of wife assuming husbands last name. Presented to everyone as "married" for past 10+ years. Husband has successful business (self employed), as does the wife have a separate business under maiden name (business began prior to relationship-wasn't prudent to change name of company).

Pitfalls:
Have never filed a legal recording with the county clerks office for an informal marriage certificaion. Never filed taxes jointly. Wife dileberaty separates legal filings (taxes, home ownership, investment properties, bank accounts)due to tax debts in maiden name. Doesn't want to link, expose husbands assets because of tax debts.

Concerns are not filing a legal document, may cause wife issues if husband dies (probate, acquiring estate because child is minor). But to file legal informal marriage document may joint the two together and create a tax mess for the husband. Any thoughts?

Chris Schmiedeke said...

If you are married, you are married. It will not matter how things are filed, or how much trickery is going on...you are married and the laws regarding divorce apply. You do not HAVE to file a legal document to be married common law.

It is important to note that you cannot straddle the fence on this issue. Either you are married or you are not and you get the benefits or negative sides that come with it.

Sounds to me that you are trying to straddle the fence. Good luck with all that. I think the end result of this scenario may not be pretty. Better choose which side you want to be on.

Anonymous said...

chris, i dont know if i was common law married or not.... my baby's father and i lived togeather for about 4 years ( we just recently broke up )however never once did we represent ourselfs as being married... there was talk of marriage in the future...so i guess my question is - does just living togeather and having a child constitute common law marriage?

um.. said...

Baby Mama,

You lived with him for 4 years. That is a pretty righteous representation, aside from the carseat, to the public that you were living as man and wife.

Or maybe I am wrong. No joint lease? Ever? Which leads me to a question I think has been answered...or an answer I think has been questered.

I guess it isn't a good idea to live for long periods of time with people you are shagging in Texas.

It might make you married.

Anonymous said...

this is fantastic, a divorce without ever being proposed too!! what a gyp... baby mama is good enough for me!
baby mama

Chris Schmiedeke said...

Anonymous, if you dont hold yourself out as married then you are not common law married. However, what does you ex say, does he agree that you did not hold yourself out as married.

If you talk about getting married in the future, then you are not married. A common law marriage is being married...there would be no need to discuss marriage in the future.

Remember, there has to be an agreement to be married as well.

So....Anonymous, can you answer your own question from that?

melanaise said...
This comment has been removed by a blog administrator.
possibly mormon? said...

dammit had to delete my own post..

I still want to know...

Nosy neighbors:

"Dude" (as listed in my phonebook"
has a key to my apartment. He randomnly comes over, if ya get my drift. My divorce is not final. (so?) Don't judge.

This applies to baby mama too.

If the neighbors are nosy, and think you are common law married, (which happens alot, according to some of my own issues, which I am cancelling all subscriptions too.)

At what point do I leave a blazing note on my neighbor's door that says "we just wanna SHAG, leave us alone??"

Because now, I am confused. (as usual.)

I, baby mama, am also a baby (or three) mama. You have the kid?

To this lawyer: There is a videotape out there of me being proposed to and accepting because it was under pressure, (filmed on Christmas Day, engagement ring and all.)

Chris, are you saying that I should have gone through a divorce before marrying my current soon to be ex?

Because if that is true, I need a stiff drink.

Perhaps if I just shut up, no one will question it.

old school client said...

I represented myself as married so the 20 year old I was with could drink- the bar girl said, just tell them he's your husband.

Are we married?

Chris Schmiedeke said...

Listen everyone, THERE IS NO SMOKING GUN to determine if you are common law married...it is a combination of many factors.

Pelting me with single incidents will NEVER answer the question as to whether you are common law or not. There are many other factors to concern.

Trust me, you will know that you are common law married, because you will be just like myself and every other married person out there...there will be no doubt in your mind.

If you have a doubt in your mind, then you mot likely are not common law.

PLEASE CLOSE THIS PAGE AND REVIEW THE REQUIREMENTS TO BE MARRIED BY COMMON LAW....live together, agree, and hold out. Hell, most of the facts you are giving me you don't even live together! Geez!

Anonymous said...

First of all, if you are going to list your personal blog on your professional website you might want to spell check first. Secondly, if you are going to "shamelessly plug" your law firm by offering your wisdom on what makes the institution of marriage constitutionally sound - maybe you should start imparting some of that great wisdom a little closer to home (if you know what I mean). Have a happy 4th.

former client. said...

someone is satire impaired and anonymous. how brave. Here I am deciding whether or not to alter my masterpiece and link or not and wow...a mean person.

Chris Schmiedeke said...

Anonymous, I am sorry if my inability to type correctly and properly proofread my responses somehow upsets you. However, I can assure you that I will take the utmost effort in the future to do both.

As to your second point, I have no idea what you are talking about. I do shamelessy plug my website, because this is MY BLOG. If you do not like it (or my typos) then do not read it.

Further, I am not imparting anything with regard to the constitution or the institution of marriage, I am simply sharing the laws in Texas as they relate to Family Law in a manner that is not boring and dry. I feel by the nature of your post that you understand that.

As for my wisdom and my home, I am not sure what exactly your silly little insenuation means, but i can guarantee that you do not know me (although you may think you do) or anything about my life or my institution of marriage.

Sounds to me like a little fabrication from somebody with a bone to pick. Sorry to any readers I may have out there that have to sort through this muck.

Thanks for reading anonymous, and could you please grade my spelling? Happy July 12th.

old school client said...

good reply Christopher M....tell em hou it is....

there is this cute little button called "next blog" if ya don't like it....

'atta boy!!!

Anonymous said...

So your entering into a marriage, even if you don't get legally married. WOW. I guess I've been married two times then. I still think living with someone is alot better then getting married. I was surprise to hear that in the state of Texas it is "informal married." But really if you don't have children what are the chances that the relationship will come back to haunt you? Isn't that what WILL'S are for?
I was with someone for 7 years, filed income tax with them. That makes me married?
I'm confused because to me marriage is signing saying yes i want to marry this person, having it in writting.
I think this law is stupid because if living with someone wasn't allowed. I would of signed a marriage licence and been with someone that beat me all my life,but because I didn't marry them I got out easy.
It's all about the money.
Texas should give people the right to choose what is right for them, and if we do choose to live with someone we should be able to use our good senses, love them unconditionally and/or prenump. r

Chris Schmiedeke said...

No, anonyomus, it sounds as if you are mistaken. If you review the requirements, there are three. Cohabitate, agree to be married, and hold yourself out to public as married.

You can live with as many people as you like and as long as you do not agree to be married and hold yourself out to others as being married, then you are not married.

People raise the tax issue all the time. That is just a very small piece of the puzzle of evidence. It takes a lot more than that.

Anonymous said...

I lived with what I thought was my common lawife for 19 years. Most everybody we knew thought of us as married. During the last 4 years together she would correct people and say we were not married. I moved out 1 year ago and she waited 6 weeks knowing I was living in a temporary place and filed eviction papers on me,got a default judgement because the constables kept serving/leaving notice at the house we were buying together because that was my address for 16 years. Now she says it is her house and I was a tenant all those years. She has also filed numerous lawsuits against me totaling 1/4 mil. Since she planned this for awhile before she drove me out by secretly setting up recording devices(I left when I found out about them)she destroyed all my documents and wiped out my hard drive using Doss so it was unrecoverable. I have 16 years of 1/2 of all household payments invested, plus remodeling work. Being a legal sec. for 20 years she has manipulated the court system against me and I can't get an atty to take the case. I have some witnesses that will testify that she is filing false claims against me but I'm still out my 1/2 of the property. I do have a joint checking acct. from 88 when we first bought the house. She destroyed the document she signed showing joint ownership and has changed her will that used to have me as the sole owner upon her death. Do I have any chance at getting my investment back? Almost impossible to prove CL marriage or even putative marriage so should I just file charges for fraud and unjust enrichment. Could Tx. DTPA be filed also since she claims to have been a landlord for 16 years although she never claimed my payments as income or paid taxes on those proceeds?

Chris Schmiedeke said...

Anonymous, I wish I could help you out on your post...but an answer to that type of question would require a novel.

You really sound like you know your way around the law pretty well, but the best advise i can give you is to retain a lawyer.

I know that is easy for me to say, and I'm sure you've been turned down by many, but keep looking and good luck. Worst case...represent yourself! Get your hands on some good family law books with references to case law and you can do some damage.

Good luck.

Faye said...

Hello Chris, Sorry it took so long to get back with you. Sorry to see you actually get rude people here. As for Anon's posts, hmmm, it could be that common law marriages are the least of his worries...is he aware that the filing of a Joint Income Tax Return (when you AREN'T married) could consitute Federal Tax Fraud? LOL

Now for the answer to my "quiz" question for you...primarily because I now have legal respresentation from one of the attorney's who overturned the 9/1/1989 law, in Federal Court. The 9/1/1989 TX Common Law Marriage law was ruled unconstitution in Dec 1995 by the US District Court, Sherman Division (a Judge Brown..Paul Brown I think) in White v. State Farm Mutual. He ruled the one year time period was unconstitutional. In doing so, this repealed the law which automatically reverts back to the law, in place, prior to the law change (correct me, here, if I am wrong) which would mean it remains the only "valid" Texas law up to the 9/1/1995 law.

The 9/1/1995 law established a two year time period to prove an informal marriage, from the date of separation or 2 yrs from 9/1/1995, whichever was later. HB336 (9/1/1995 law) also expressly prohibited it's application to any case prior to it's effective date and stipulated that applicable law would fall under the jurisdiction of the law in effect, prior to 9/1/1995....which would be the law in place BEFORE the 9/1/1989 revision, since it was an unconstitutional law.

Social Security still shows as "Valid" TX law,the 1989 and 1995 law in their POMS Manual, HOWEVER, their own 1986 SSA Appeals Ruling SR 86-13c has the Texas law footnoted in a case (that does not parallel mine) and was the existing law, when the 9/1/1989 law was passed, therefore it is the law that, in essence, was the "effective law" up to the revision of 9/1/1989. http://www.ssa.gov/OP_Home/rulings/oasi/53/SSR86-13-oasi-53.html

Effective law up to 9/1/1995 (per SSA's appeal ruling) was

§ 1.91 Proof of Certain Informal Marriages

(a) In any JUDICIAL, administrative, or other proceeding, the marriage of a man and woman may be proved on evidence that:

(1) a declaration of their marriage has been executed under Section 1.92 of this code;

or

(2) they agreed to be married, and after the agreement they lived together in this state as husband and wife and they represented to others that they were married.

(b) In any proceeding in which a marriage is to be proved under Subsection (a)(2) of this section, the agreement of the parties to marry may be inferred if it is proved that they lived together as husband and wife and represented to others that they were married. Tex. Fam. Code § 1.91(b).

The key to my case, besides my Joint tax returns/extensions to file, joint bank statements, etc is Section A "any judicial proceeding"

You will note that it does not (nor does existing TX law) stipulate that this judicial proceeding has to be in a Texas court. Our 1986 JOINT Chapter 13 Bankruptcy case consitutes a "judicial proceeding" in which we, as a MARRIED couple, filed for Joint bankruptcy. The Federal Court administered the bankruptcy case for four years.

Social Security's denial is based on treating the actual claim as an attempt to prove the marriage. Given that the events happened 6 years before the law was passed and it's prohibited by the 1995 law to apply law, retroactively, I think the outcome will be a positive one, once the ALJ sees the Original documentation that I have, including original signatures of the deceased spouse.

As a humorous note...just in case you ever have a current case involved, the law passed in both 1989 and 1995 only states a judicial proceeding to prove the marriage, must be FILED within the 1 and/or 2 yr time period. NO WHERE in either law does it state a FINDING has to be made. A little slip up of our Texas Legislature?

As for your typo's...I think Anon should spend more time improving his grammer AND HIS CHARACTER, before critizing you!

Have a good day, Chris!

Anonymous said...

If I am about to try to prove my marriage was a valid informal marriage. Do me and my husband have to come to court if we have broken up? It has been way less than two years since we broke up.

Anonymous said...

Is it possible to have a religious ceremony to "bless" an informal or common law marriage in Texas? I know some states, clergy is not allowed to perform the ceremony w/o a marriage license and w/o filing it. What is the case in Texas?

Anonymous said...

Chris, I am an attorney too. I have an interesting situation shaping up in probate court. An ex wife will be claiming that she and decedent where common law married at the time of his death (apparently based primarily on the fact that they remained freindly and he spent a few nights at her house). I think that the deadman's statute Evidence 601(b) should preclude her from trying to show his intent. Any thoughts?

Anonymous said...

Hi,
My father married under a false name in Texas in 1990. Does this make their marriage legal? He just passed away and according to Tennessee law where they have joint assets, the widow gets all and his children (he had none with her) get nothing. Tennessee does not honor common law marriage and my father and his wife had a house in Tennessee since 1995. Would they be considered common law married, "in an informal marriage", even though he married under a false name and they lived most of the time in Tennessee? Thanks! Kimberly

Anonymous said...

I lived with a woman for more than a year in Texas. While she lived with me and we represented ourself as being married to public, she was going to single sites online, representing her profile as divorced and exchanging email with single men ( as far as I know). I caught her red handed and asked her to leave. She filed for divorce. Are we realy married if she had presented herself divorced on the world wide web?

CK from California said...

My situation is very similar to that guy common law married for 19 yrs then cheated out of half his adult life. I've sent you a comment/question on your Legal website. Hope you can return/advice or, maybe this anonymous 19yr relationship and I should contact each other and find out what we can do!

Lesley said...

Hi Chris,
Nice blog; entertaining and informative!

My fiance and I are getting married in October; we will have a ceremony, most likely by an Officiant or Celebrant (someone who knows us, but non-religious)and will not be filing any papers for a formal marriage. This will be a common law marriage, by agreement of both of us. I would like to change my name from the current previous husband's surname to my maiden name (which I now use as my middle name). Everything I have found states I must present a marriage certificate to do so. How do I change my name via common law marriage?

Lesley said...

My fiance and i are getting married in Oct. We are not filing for a certificate. We are having a ceremony performed by an officiant or celebrant, but not a j.p. or official of the court. We have agreed to a common law marriage and will present ourselves as husband and wife after that day. Question: How do I change my name from my current ex-husband's surname to my maiden name (which I now use as my middle name) after we are married? Seems most institutions require a license.

Lesley said...

Sorry Chris, if my post appeared twice; I don't blog much and got a little confused during the sign up process.

Chris Schmiedeke said...

Lesley, that is a good question an one in which I am not sure I know the answer. In a ceremonial marriage you get a certificate which you can then use to change your name. If you are not going to file a declaration of marriage then you can file a lawsuit to petition the court to change your name to whatever name you like. It would be a petition to change the name of an adult.

Good luck.

Anonymous said...

Dear Chris:

I have been common law married in TX for 5 years - we have lived together and paid rent in three homes, three in my name and two in his name with him as my significant other/spouse/partner and we have introducted eachother as husband and wife, and worn rings - he has signed numerous documents while I was in the hospital with menengitis recently stating his name, husband. Now, as it turns out I have experienced family violence and put him in jail - and yes - yell at me - it is not the first time - he goes for months on end as a wonderful man and then turns into Dr. Jeckyl. Nevertheless, he is in jail and as I have recently gotten out of the hospital after two months, I've found much of my things, and purchased art is in his home which has now become our co-habitated home and I do have storage with his things as we consolidated. He wants to keep me from my things so badly he beat me. Can I file for divorce? I have protective order and I am in the house, which is going to make him crazy as we have tons of important art. It must be driving him nuts. I need legal help and no jokes - this is life and death here - do I leave our jointly purchased items of great value? Or do I take them and expect him to claim them as his and file theft (he has done that before to no avail) Furhermore, he filed with his insurance that I took many art items he had before we got together and I FOUND THEM. He received 1000's of dollars from his insurance agency. I've also found my name forged and so forth. I know a great fellow but listen ladies YOU NEVER KNOW Please advise. Dumb to Love

Chris Schmiedeke said...

Anonymous, get a lawyer and file for divorce. The family judge will offer you protection in addition to the protective order. Your property will be divided according to the Texas Family Code.

This is an important learning point. If you are common law married (meet the requirements of the statute) then you are married. For some reason, people who feel they are common law married think they are second class citizens. If you are common law married, you are married, and need to resolve your marriage just like any other person married in a ceremony, etc...

Lesley said...

Hi Chris, it's me again regarding changing my name as a result of a common law marriage. After reading the "namechange" laws, I am not at all interested in giving my fingerprints to change my name back to my maiden name. Why is that now a requirement? Most likely the damn. Patriot Act, which is a joke...next question, if we record our marriage at the County Clerk's office, what does that entail and/or mean? My reason for wanting a common law marriage is philosophical whereby I don't need permission from the state to be married, so why get in bed with them? I really hate all the gov't intrusion, so this name change thing is especially frustrating.

Lesley said...

Chris, another thought and question regarding the name change...I kept my ex-husband's name when I was divorced. Is there anyway to amend my divorce papers now, 4 years later, to change my name?

Chris Schmiedeke said...

Lesley, the declaration of marriage "formalizes" your common law marriage so there is never any question that you were married. What its effects on your name change is I do not know. You probably know better than I.

I have not done an adult name change in a very long time. Back in the day we did not need a fingerprint card, but it does not surprise me that one is needed today.

You cannot go back an modify your prior decree to change your name...it was a one shot deal.

Sorry I could not be of more help. Good luck.

Chris Schmiedeke said...

Lesley, the declaration of marriage "formalizes" your common law marriage so there is never any question that you were married. What its effects on your name change is I do not know. You probably know better than I.

I have not done an adult name change in a very long time. Back in the day we did not need a fingerprint card, but it does not surprise me that one is needed today.

You cannot go back an modify your prior decree to change your name...it was a one shot deal.

Sorry I could not be of more help. Good luck.

Anonymous said...

Help Chris I think im being setup.

I live with my mother here in Dallas and I moved my gf in the same house as my mom and I because she lived far away. I know she likes to go around pretending at work to a few people that we are married which I dont acknowledge to anyone anywhere. We have our own separate accounts however we use the same address. We file taxes separately and she even uses her parents address for that. I try to keep everything separate for this very reason. I know there is no time limit in Texas, from what I can tell on your blog. Im concerned with her trying to take half of my stuff. Is it possible for her to do that? I think that in the event that we did break up she would try to lie and say we were CL. What precautions can I take to make it void if she was to try to force common law on me?

Your help is greatly appreciated

Frank In Dallas

Chris Schmiedeke said...

Frank, I think the key to your situation is the agreement to be married. Ask her straight up to sign something agreeing that you are NOT common law married. Make sure people you meet know that you are not married, etc... If she is up to something then you will know and can take appropriate action. If she is not, then why would she care to sign something?

This may or may not work depending on your specific factual scenario, but it is a start.

Do you really want to be in a relationship with someone who may be scamming you? Now I sound like Dr. Phil.

Good luck Frank, let me know if I can help.

Faye said...

Hi Chris,

Glad to see you are still blogging.

I posted a post under texastwin827 re SSA's denial of my widow's pension and thought I'd let you know that I won my appeals hearing.

I contacted Mr Chapman, in an attempt to pay him to provide me with a copy of his 1995 White v. State Farm Mutual case, of which he was co-counsel, and he offered to represent me, after hearing my story. Not that you are likely to have a situation like mine, but thought you might like to know how he argued my appeals case.

1) TX common law marriage law prior to 9/1/1989 of course, stipulates the 3 prong test (which I met) however, it states "ANY judicial proceeding" can prove a common law marriage. He argued that our JOINT 1986 Chapter 13 US Bankruptcy court proceeding qualified and therefore, our marriage was "proven" in 1986 and could only be set aside by a court order or death, since there is no such thing as "common law divorce" in TX

9/1/1989 TX law...he presented a copy of his 1995 court case whereby US Dist (Sherman Div) Judge Paul Brown had ruled the one year time limit as unconstitutional because it violates the "Equal Protection" guaranteed by the US Constitution and Judge Brown's ruling has never been challanged. He also pointed out that the 1989 law was repealed in 1997 by the TX Legislature, rendering it as "ceased to exist" and that the 1989 law simply states a "proceeding must be initiated" but does NOT state a finding has to be made. He futher stated that, even though it is an "invalid" law, I had even complied with the 1989 law, when I filed for a divorce (that was never finalized)in Nov 1989, two months after the law went into effect.

9/1/1995 TX law he pointed to the fact that I had provided SSA with more than enough documentary evidence that the marriage existed (law states "rebutably presumed" which allows for evidence to be introduced to rebutt a presumption that there was no marriage. He didn't even bother to bring up that HB 336 was passed, in it's entirity, in 1995 and expressly prohibited retroactive application of the law, nor that both the US and TX Constitutions also prohibit retroactive application of a law.

Keep us the blogging...you might be surprised at how many people you have helped.

Anonymous said...

Chris, I have a question. I'm in FL and my dad is in TX. He is doing well health wise and I believe it might be too late for him to fill out a will. He has a live in G/f that I believe will try to claim common law marriage if he dies and take everything. Her name isn't on the house or car and my name is on his life insurance. Is there any way she could get anything using "common law marriage'?

katiedid323 said...

Hi. I live around Fort Hood, TX and I live with my boyfriend. We've lived and shared bills since we met. The military won't give him a housing allowance becuase we are not married. If we enact on the common law/informal marriage will the military see it as a legal form of marriage? I believe all they need is documentation of marriage. Would we be provided that if we just do the common law?

Chris Schmiedeke said...

Katiedid323 - I do not know what the requirements are for the federal government, but when you become common law married you can file a declaration of marriage with the county. That may be enough. Contact the county in which you live and find out how to file a declaration of marriage. Present that document to the military and see if that works.

You will be married when you file that declaration.

Good luck.

Chris Schmiedeke said...

anonymous in florida - the answer to your questions is yes, she can get something claiming common law marriage. It is possible. I don't know any facts that would support a common law marriage one way or the other. But is it possible? Yes.

Anonymous said...

I have a question..might be dumb but need to ask to make sure. I "common lawed" someone and took their name...have been using their last name for the past 11 years (however we were no longer "common law" since 1997 - I need to change my name or say what if I wanted to marry someone - do I need to change my name legally first? I mean to actually get divorced? I know it's stupid but I was a 19 and in love...blah blah blah....and never thought to change it back becuase of our children.
What to do?

Faye said...

Katie, the military would likely yield to TX State Law, as a common law marriage enjoys the same priviledges (and responsibilities) as a ceremonially married couple does, in Texas.

Moreso, at issue, is whether you and your boyfriend WANT to be married. While being married would likely entitle him to numerous benefits (housing, spousal allotments, joint tax returns, etc) that single military men do not get, both of you need to consider, first and foremost, whether you wish to be married.

Common Law marriage is as legally binding as ceremonial marriage is. As Chris said, you can file a declaration of marriage with the County you live in, however, once that is done, if for any reason your relationship dissolves, at a later time, you would have to file for and obtain a divorce, just like any other married couple does.

I do not mention that fact, as a negative or a suggestion that your relationship is not just as solid as any other couples is. I just thought I'd mention it, so you know that you should give it the same consideration that you would if the two of you were considering a ceremonial marriage.

That said, I wish both of you the best, in the future, and may God keep your soldier safe.

Chris Schmiedeke said...

Anonymous, you say that you were common law married, then you finish with "we were no longer 'common law' since 1997.

It sounds to me as if you never really thought you were married if you just stopped being married. Sounds like both of you went your own way without giving it a second thought. If that is the case, it sounds like there was not a common law marriage.

What I keep trying to explain to people is that if you hold yourself out as common law married, then that is the same as actually getting formally married. You are married, period. The one thing that makes common law different is, if you separate and do nothing to end the marriage, the court now assumes that you were not married.

Whether this applies in your case depends on what law is applied to your case, the law that existed then or the law as it exists now.

However, to answer your questions, if you want to get married, for your new marriage to be void, someone would have to prove that your prior marriage was valid and still is valid. Who is going to do that?

As far as the name change goes, you can file a petition to change your name back to your maiden or you can simply get married and assume your new husband's name.

Good luck.

Anonymous said...

Okay- two people live together for 11 years, have two children, purchase two homes together, joint bank accounts but never file joint tax returns and she never takes his name but the kids do. She sets up a medical practice while he works at his job, postponing his own professional career. After 11 years together, she meets another man, pays off the construction loan in June, her partner in July, and tells my friend, in August, she wants him to move out because she's in love with someone else.

He moves out. Finds a house close by for the kids. She re-finances, in her name only, the house and somehow convinces my friend (he's an emotional mess from all this) that she needs a document stating they were never legally married for creditor reasons and has it notarized. The mortgage broker tells him they need to do this notarized document or he can't do the re-finance for her. They both sign.

About a year later he asks for a copy of the document, by this time he's better emotionally and realizes he's been duped. She denies its existence. Says it never happened. This is all in emails where she denies there was ever a document.

She still thinks she's entitled to 1/2 the proceeds from a piece of land completely in his name (its up for sale...) but won't follow through on her promise of giving him a percentage of the property.

No custody agreement was ever formally done. They share 50/50 custody but some issues have come up from time to time regarding holidays, etc.

She's now getting married June 21st and he's consulted an attorney who said he needs to file for divorce but couldn't take the case due to her case load. He's referred to someone else who wants something in writing where they referred to each other as spouse or he won't take the case. My friedn is certain there are life insurance documents, etc but is not sure how he'd possibly go about getting them before she's forced to produce them...

Basically, does he have a leg to stand on to go ahead and seek other counsel to go forward with a legal divorce if he has numerous witnesses, including her family, where they said they were as married as anyone even though they didn't do it "officially?" He's concerned that her having this "non-existent" and her being able to pull it out as evidence they never lived as man and wife???Sorry for the long post.

Chris Schmiedeke said...

Anonymous, it is impossible to answer your question because I do not know if your friend lives in Texas or another state or what his position is or what he wants. Your post hints that he does not want to be married but then you talk about him shopping for a lawyer.

Even with that information, it is still impossible to answer the question. The cases are very fact specific, which means every single one is different. Similar facts could have a completely different outcome dependent on the judge or numerous other things.

If he wishes to be married, then he simply must prove satisfactorily to the judge the elements for common law marriage that are listed in this post. (if he lives in Texas). You could give me a list of 100 things they did or did not do and I would still not be able to give you an answer.

I am a bit surprised that a lawyer would require him to prove that he was married to him. That is the lawyers job to prove it, with the available facts, to the judge. I suggest finding another lawyer if he wishes to be married.

As a side note, he does not have to be considered married to get orders regarding the children. If he is only trying to prove marriage because of that, he can file a different lawsuit and avoid the whole marriage issue.

Good luck.

Anonymous said...

JB said...my adult children's father recently died leaving a fairly nice estate. His 'girlfriend' of 7-8 years is now claiming they were married. They boasted numerous times to others that they didn't see any reason to get married - he had officially been married and divorced 5 times and didn't see the point. They lived together although real property ownership is in his name, filed IRS taxes as single, etc. It is believed that she is transferring funds and they kids are on hold waiting for a determination to be made regarding a very questionable - messy note type handwritten document to be determined a will or whether the court will honor a legally prepared on file with local atty. from within the last 8-10 years. In the past, he always kept a current will addressing his current partner/wife. Your opinion given this info please. The 3 adult children stand to lose ownership of a ranch that they were raised on for over 30 + years along with substancial assets.

Chris Schmiedeke said...

Anonymous - the kids need to get a probate lawyer to handle the will stuff. Perhaps a restraining order would be appropriate to stop the girlfriends actions. As far as the common law marriage, a judge is going to have to make that determination, but it does not sound like there is much evidence to support it.

Good luck.

Anonymous said...

My sister in law and her husband had a formal comon law marriage in Smith County, Texas. They moved to Pennsylvania 3 years ago, and have been seperated for a little over one year, due to her adultry. He moved back to Texas in June of 2007, and she still resides in Pa. Do they need to get a divorce? Or are is the marriage going to be "annuled" on its own since she is no longer a resident in Texas?

Chris Schmiedeke said...

Anonymous, they may or may not need to get divorced. If they were married, then they need to get divorced.

The marriage will not be annuled because they have not met the grounds for an annulment. Her residency is irrelevant.

I suggest she review my posts on common law marriage and determine herself whether she needs a divorce or not.

Anonymous said...

I was wondering if maybe you could answer me this question. My boyfriend and I want to live together on a college campus but to do so we must be common law married or married. Of course. So i was wondering if we got common law marrried can we have a actual wedding later on, or how does that exactly work??

Michelle Cooper said...

Chris,
I hope you can help me and my brothers, my father just passed away. His girlfriend whom is living in his house is stating that she was his common law wife for ten years. They did not even move in together until 2002. She just turned 65 and is receiving a Social security check under Carolyn Tigert, she never had her driver's liscense change to my father's name which is Cooper. Everything is in my father's name. She was not even allowed a signature card on his bank account, which they had seperate accounts. Her account was under Carolyn Tigert. There is a will naming everything to his children, I know she is going to try and say they are common law, but if she did not have anything changed into my fathers name Cooper, then they were never common law married, right?
Michelle Cooper

Anonymous said...

Chris,
I truly hope you receive this, my father passed away Oct. 28, 2008. He had a live in girl friend since November of 2002. She is living in his house, she says they were common law marry, but she receives a social security check when she turned 65 in September under the name Carolyn Tigert. So in other words she has never changed her SSN to Cooper or her drivers liscense was never changed to Cooper. There is a will and it has been notarize, and has been filed with the State of Texas, which my brothers are going to have probated. I know she is going to pull the common law marriage, but nothing was put in her name, my dad did not even allow a signature card so she could cash check on his account. Which she has been forging his name. The will states that everything is to be sold and divided between the children. She has giving to her children which is nothing to my father, my fathers property, will we be able to get this family pictures and other property back? What can we do about her?
Michelle Cooper

Chris Schmiedeke said...

Michelle, I have no idea where you live so it is tough for me to advise.

I think ultimately the question is whether she can claim she is married. The answer to that is yes. She can claim that. If she does, then what.

When you are probating the will, she would have to contest it as being his wife and she would have to prove they are married.

Depending on what state you are in, she would have to meet the grounds for a common law marriage. In Texas it is 1. agreement to be married 2. cohabitating and 3. holding yourself out to the public as married (i.e. witnesses to testify that they thought they were married).

Good luck.

Chris Schmiedeke said...

Anonymous, if you agree to be married, live together, and hold yourself out to the public as being married, then you are married.

If you want to come back later and have a formal wedding, then do it, but if you meet the criteria above, you are already married.

Daniela6968 said...

Hi,

I have a question. My mother was common law married for 12yrs before their separation in 1986. He has since then been married to another and is now a widower. My mother kept his last name and it's on her legal documents.

She is now seriously ill and I want/need to know what do I need to get her maiden name back?

Thank you so much for any help in this matter.

Rodjk #613 said...

Hello Chris,
If we file a Declaration and Registration of Informal Marriage, do we actually get a Marriage Certificate? Is there any difference between the Certificate and one we would get if we did the whole formal thing?

Thanks,
Rod

Anonymous said...

I have a question if anyone has advice or the answer. I was married in Texas had one child and then divorced. There was a child custody agreement in place.
I couldn't make a living in the town I was in and moved to another over 100 miles away. My exwife and child joined me within 6 months and we started living together and had another child. We presented to others that we were husband and wife.
Well, as of today we are split again. I have heard that since we were common law married that the old child custody agreement is null and void. Does anyone know, I mean I will contact an attorney but I thought I'd see if anyone here had any advice or has been through anything similar.

Anonymous said...

Hi Chris,
I have a situation that I am currently experiencing. I hope you might be able to give some advice.
I was Common Law Married to a man who passed away last year. I have a deed of trust for a house we purchased in 1985, which has our signatures stating husband and wife. This establishes the agreement to being married, and cohabitation, also, I have four affidavits from his family, acknowledging our Common Law Marriage, with Affidavits of Heir ship. His death certificate was misrepresented, as his girl friend was the informant, and stated she was the surviving spouse. My de lima is, that the Texas Department of Vital Statistics will not acknowledge my Common Law Marriage, or amend the death certificate without court documents recognizing me as his Wife, up until his death. This document must also specifically state, that the court is authorizing the death certificate be amended with me as the surviving spouse. What is the procedure, and how do I go about doing this? Is there a document that will recognize my relationship, and will give me the rights that I am entitled to, but at the same time be Court, or State of Texas sanctioned.
Thanks

Anonymous said...

Chris, I'm trying to help a friend in East TX. She bought this farm some 15 years ago and is still paying for it. She has 3 girls (ages 7-11)from a previous marriage (legally divorced) and plans to give it them when they are of age. She is and has been living with a man for the last 4 years (no children). They live on her farm. She works as a certified nurses assistant, makes about $2000 a month and pays all the bills. The man refuses to marry her because he says he wants whatever property he has in the Philippines to stay in his family and go to his children from his prior marriage. Recently she confided to me her fears that he and his adult son were trying to find a way to take her farm for themselves and that she was planning to ask him to leave. When I mentioned the Texas Common Law issue, she said that she had never heard of it and knew nothing about it. Am I right that she has something to be concerned about, if she asks him to leave and he wants to make the farm an issue. She unfortunately has allowed him to claim both her daughter and her mother as dependents on his tax return for the last 2 years. What if anything can she do to protect herself?

Anonymous said...

question: do both parties have to sign a document stating that they are informally married in the state of Texas? Can one person file without the other person's knowledge and the informal marriage recognized as legal? I have an ex-husband who died recently and his shyster girlfriend is really causing problems. The family feels helpless, especially since shyster is a lawyer. Please advise ~ thanks

Chris Schmiedeke said...

Anonymous, I don't know. Check with the requirements of the county, they may know.

Chris Schmiedeke said...

Anonymous, I don't think there is a lot your friend can do to proactively protect herself. She just needs to proceed as he is the boyfriend and she wants him gone. If he sues her for divorce then she would have to deal with that at that time.

You are right, however, that it is something she should be concerned with.

Anonymous said...

A man and woman married in CA while the woman was still married to someone else...the man had no knowledge until divorce proceedings revealed it recently. Her hidden divorce became final a year after marrying the second man. They move to TX for 2 years then back to CA eventually moving to AZ where she filed for divorce. The marriage in CA was declared void by AZ judge but he claims they are common law because they lived in TX for 2 years. Would that common law be recognized in TX though there was no agreement to an informal marriage and fraud was involved or can that commom law be voided as well due to fraud from the beginning?

Anonymous said...

I tell everyone we're married and we have a child and lived together for over a year. can i use his last name in legal documents like financial aid, college, immigration cards, banks, social security, etc....

Chris Schmiedeke said...

If you are married, yes. If you meet the requirements then you are married just like everyone else. Review the requirements again.

Good luck.

Anonymous said...

i have been living with him for 3 years and every where we went he introduced me as his wife....now i am leaving due to the fact another female asked if he was going to pay for the #$#%^%^%, he also told me she has had the number for a long time.......each time people would come over, in the stores...so can i take him to court? and what is the procedure?

Anonymous said...

Chris, My daughter has been living in Texas, with her baby's daddy off and on for the past year and a half. They started living together when she got pregnant. The off and on is he would get drunk, angry and leave, leaving her and the baby with nothing. This usually happened when they were very far behind in bills and she was forced (or we were) to bail her out and then start over. She was not very smart and let him back to try to conserve her family. It has happened again after 4 months and she is so far in debt, no money and was laid off from her job. She is to start a new job tomorrow but now no babysitter. She worked days, he worked nights. He was married to someone else the first year with 2 cildren from that marriage and found out later he also has another child about 4 months older than my daughters. So he acually has 4 children under th age of 5. My daughters th youngest at 10 months. She has filed for child support as have the mother of the child that just popped up. Are they common law married? The only thing both of their names is on is a rental property for one month that he left from this time. He originally took he car and when she called the police they said even though it is in her name only it is still half his. He eventually brought it back when he thought he was going to be stopped for stealing it. Now she is stuck with no job, a lease on the house, no baby sitter, no money. What is her recourse? How can she collect money for the house? Any help will be appreciatd.

Star said...

Chris,
Good info.
Question.
2006-2008 man and woman live together, buy home together, joint bank accounts and file return together.
08/01/08 they split. It is agreed that the man will assume the home note due to his family harrassing the woman and moving into home as he felt that they had power of attorney. It got nasty. It is now 06/29/09 and man still can't get home out of womans name (she is the buyer he is co)Man just recently got married to try to get help in financing the house. We have agreement signed on 09/09/09 that he is going through XYZ Company to finance but man can't get the financing through them now due to credit and no job.
Does this mean his new marriage is not leagal? Is there anything that I can do to get the house out of my name? Is there some sort of law that states resonable time is 6months or that since he is looking for new financing that we must sell?
I have tried to sell and he stops it every time?

What can be done?

Please help!

Chris Schmiedeke said...

Star, there is not near enough information in your post to determine if you are common law married or not. Even if there were, these are fact questions for a judge to answer. You might not get the same answer from two different judges.

As for the house, assuming you were not married then you would be considered joint tenants which is property law. I would suggest contacting a property law or real estate law attorney to see if they cannot force a sale of the home.

Good luck.

Anonymous said...

Do you think it is necessary to file for a declaration finding not common law married to protect against my ex (mother of my two children), whom lived with me for 4 years,coming after my assets,eventhough, we never declared common law she now may want to persue common law?

Chris Schmiedeke said...

Anonymous, I have never heard of such a document. Not that one does not exist, I just have not heard of it.

If you were not married, then I don't think you need to do anything. If she wants to contest that, no matter what you file, you are going to end up in court it seems.

You will have to get some orders regarding the kids, however.

Go talk to an attorney, give them ALL the facts, and see what they say. They can help you with the child related issues as well.

Good luck.

melissa said...

ok i have a question and need an answer pretty bad? me and my guy planned on getting married on november 21,2009 invations and the whole nine yards. we had been living together have a lease agreement in both our names cell phone bill in both our names and on october 24,2009 he commited suicide...... how can i get a common law marriage certificate because we were according to the law or what do I do now?

Anonymous said...

hay i need help if someone could answer a question? me and my guy lived together had a lease in both our names cell phone bill same thing. we were getting married novemeber 21,2009 had the church booked invations out the whole nine yards well on october 24,2009 he commited suicide, so now what do i do? can i get a common law marriage certificate?

Chris Schmiedeke said...

Melissa, unfortunately it sounds as if you were not common law married. You are missing the key part of "holding yourself as married" as evidenced by your plans to get married in late November.

I am sorry for your loss.

As for anything else I post on this blog, I do not know ALL the facts, so it is always best to track down a local attorney and run your case by them.

Good luck.

Anonymous said...

Ok so if you are the fool who married someone who later the ex came back to file common law court found their to be common law married the court said our marriage is voidable but we would have to go throught the process to void it but we do not want too. So know the previous ex and my husband have been dealing with their divorce know for over two years know and his ex is still trying to take our house. I want to know if I the new wife have any rights to my martial residence? Do I have rights as the court see's my marriage valid?

Anonymous said...

Chris...If a man and woman in Texas were married 10 years, had 2 kids, got divorced, then got informally married again a year after their divorce finalized. Would there be a benefit to do that for child support payments sake on the guys part?(like he doesn't want to pay?) or if the man wants to collect unemployment benefits since he has been out of a job?

Chris Schmiedeke said...

Anonymous, I am not sure what you are asking. A father is liable to support his child as is the mother, whether they are married or not. If the child lives with him, he is supporting the child.

I have no idea what unemployment benefits has to do with it.

Anonymous said...

I guess I am wondering why someone would get "informally remarried" instead of getting "formally married" again?

Anonymous said...

What if you were informally married over 20 years and your husband had terminal cancer and got mad after 15 years into the marriage and drew up a will atesting to not be married then verbally requested 1 month before passing to change the will leaving everything to me and that we were married. But the brother/executor of the estate that wrote the will and is presently probating the will, did not change it as requested by the ailing spouse. How do you contest the existance of the informal marriage and what is needed to prove it ? Presently this case is in probate court in Houston, Texas and there has not been any communication between the court system and the common law wife.

Rebeccarluna01 said...

ok, so I had an informal marriage certificate done at the courthouse in bexar county in 2007. we basically did it for the benefits since my so called husband was leaving to iraq within the next week. anyways, now we want out of this. do we still have to get a divorce through the court? we have a child but we werent married til over a year since he was born. he was paying child support then and still does. Also, on the informal marriage certificate, he put the wrong date to declare the marriage he put since 2005 when I didn't agree to it? does that mean we were married that long and if so what about my child who is involved? we have been separated since dec of 2008 and i just want this over and done with. I even changed my name to his in 2008 shortly after he got back from iraq, which was in march of 2008.

Chris Schmiedeke said...

You will need to get a divorce. Talk to an attorney in your area who can help you with this.

The child related issues will be resolved in the divorce as well as a name change if you want one.

Good luck.

Check out my new blog at www.thedallasdivorceblog.com

Anonymous said...

My "boyfriend" and I have lived together for 3 years. We say we are common law married. He was on my insurance at a previous job. We have joint car insurance. Now that I have a new job they refuse to let me put him on my insurance, they are not recognizing it as marriage. Is this legal?

Chris Schmiedeke said...

Anonymous, you will probably need something more formal. You could file a declaration of marriage in your County. That would probably do the trick.

Good luck.

Anonymous said...

Ok -- here's 1 for you Chris -- I'm still going to have him try to contact you but. . Apparently a friend (incarcerated) did the common law thing with a woman in NC, per her she wasn't married but he has found out she was and is. Is the marriage still valid b/c it was done here in TX? And how can he have that statement/document and her removed from his record/information?

Chris Schmiedeke said...

Anonymous, if there was a prior marriage, then any marriage they thought they had, even if it did exist, is void (did not ever exist).

I do not know what you are referring to with regard to the document/statement.

Big Sarge said...

I have a gf living with me for ten years and we have two children. Things have been bad between us for many of those years. I tried to hold it together because I did not want to be without my children. I can't live with her any more and have asked her to leave my home many times and she refuses to leave. I filed to evict her and she showed up saying she has filed for divorce. The judge through out my case. We have never agreed to live as married nor do we own, pay rent, bills or do anything together. She now is going to claim we greed to a marriage. How can I fight and beat this claim. Now she is going to try all kinds of crap to use against me. Have I lost before I even start? I am still in shock over this false claim. She still won't leave my home while dragging me through the mud. We are members of the same church and have never claimed to be married. Don't an agreement have to be proven before a divorce can be filed? If allowed other than support, what can she get out of me? I am in Harris County. Please give me some hope. Had I agreed to this I would have no problem going through it. But this is wrong. How can I disprove her claim?

Big Sarge said...

I have a gf living with me for ten years and we have two children. Things have been bad between us for many of those years. I tried to hold it together because I did not want to be without my children. I can't live with her any more and have asked her to leave my home many times and she refuses to leave. I filed to evict her and she showed up saying she has filed for divorce. The judge through out my case. We have never agreed to live as married nor do we own, pay rent, bills or do anything together. She now is going to claim we greed to a marriage. How can I fight and beat this claim. Now she is going to try all kinds of crap to use against me. Have I lost before I even start? I am still in shock over this false claim. She still won't leave my home while dragging me through the mud. We are members of the same church and have never claimed to be married. Don't an agreement have to be proven before a divorce can be filed? If allowed other than support, what can she get out of me? I am in Harris County. Please give me some hope. Had I agreed to this I would have no problem going through it. But this is wrong. How can I disprove her claim?

RLR4505 said...

We have a common law marriage that has been filed in Dallas County to get the documentation Declaration and Registration of Informal Marriage. However, getting my name changed with this document cannot be done. Can we just "remarry" one another with the traditional marriage to obtain a marriage certificate to end the name change hassle?

Chris Schmiedeke said...

You can, but remarrying would tend to indicate that you were not married in the first place. However, I understand your issue with the name. Sorry I do not have a better answer. Most likely you will be fine with whatever you choose.

Anonymous said...

Chris,
So what if you never filed a certificate with the court to be in a common law marriage and never presented yourself as a married couple, never filed a joint tax return, but you DID file a Ch 13 bankruptcy together as common law married. Are you legally "married" in Texas? Will you have to file for divorce to be considered single again?

Chris Schmiedeke said...

That question can only be answered by a judge. The fact that a bankruptcy was filed is only evidence of a marriage. All the other requirements have to be met (i.e. living together, holding out as married and agreement to be married).

Good luck.

Be sure to check out my new blog at www.chrislawyer.blogspot.com

Chris Schmiedeke said...

Let's try that again...new blog:

www.chrislawyerblog.com

Sgt. Mitchell Gill said...

Chris, I got a question,: if going to the county clerk and filing the declaration, makes you married, do you have to have a pastor or someone sign the certificate? or can the county clerk do that? do we have to have a ceremony in a church and get the pastor to sign anything? because the ones I've spoke to will only do a marriage LICENSE, not an informal one.

Chris said...

You do not need a formal marriage if you file the declaration of marriage. The clerk will execute all documents necessary.

Check with the clerk to confirm.

Anonymous said...

Chris,
I have a huge dilemma. My ex ( of 2 weeks) and I have been living together for the past 4 years. We've referred to each other as husband and wife and have often neglected correcting others of our situation. We've had a joint checking account for the entire 4 years and purchased a home together 2 years ago. Here is where the problem comes in. We've split the household bills 50/50 including the mortgage the entire time. Since our home was purchased using his VA loan. Now that we've split up, how can I ensure that I don't lose my stake and my home and I'm assumed half equity? I'm not trying to cheat him, I just want what I've earned and I'm entitled to.

Anonymous said...

Hi Chris,

Quick question! If you have an informal marriage and one your spouse is behind on child support and is in jail would the state garnish your wages?

Anonymous said...

My mom was married to my step dad, then divorced him. A year later he moved back in. She had told me she never wanted to marry again, but of course this is considered hear say. I do have other people to support her statement. My mom changed the deed to the house from her name to my name. The exhusband is stating he owns the house that it is his and everything in it is his too. What rights does he have to take these things from us (The children)? Does he have nay rights? What rights as her daughter do I have? If you know of any cases that have been tried in Texas please let me know and how they turned out. I found 3 cases that the ex-spouse did not have rights as a common law spouse even though they were living together because the couple had been divorced before and they never filed anything in the courts saying they intended to remarry.
Thank you for any assistance you can provide.

Anonymous said...

I currently live in Texas with my boyfriend and my two children. We have lived together for a year now. Here's the question....his divorce decree states that he cannot have any overnight guest of the opposite sex, from 10 pm to 6 am, when his children are present. We want to be married, just not right now. If we file a declaration of informal marriage with the county clerk, will this over ride the morality clause in his divorce? Ultimately allowing me to stay in my own home when his children are here for the weekend?

AtaLoss said...

Chris -

I have a question...I have been living with my ex husband for the past five years after he asked me back into his life. This was supposed to be a life long commitment according to him. I was told I would always have a home. He has introduced me as his wife and my grandchildren call him grandpa. Now, he has started an affair with his first ex wife (who is married) and has told me I must move out. I am on disability, which he knew prior to my moving in with him, and have no assets. He has refused help financially to move, but is spending money on her. I have no home. Can I sue for loss of domicile.

JES said...

Chris-

I was married in 2002 and divorced in 2007. I divorced him due a drug addiction and my need to have legal protection of our 2 children. I supported him through rehab and we have been living together and introducing one another as hisband and wife. Now we are discussing filing it formally with the county clerk. You may choose the date that we began living together as hisband and wife. The clerk at the county clerk's office told me that I could put the date of our marriage in 2002 if I wanted to since we have never stopped living together or introducing each other as hUsband and wife. Is this true? Would that void my divorce decree and make it as if we never divorced?????

Thanks!

Anonymous said...

Chris,
Please help. My mom was in a common law relationship. Both her and he had been previously married and both had been through brutal divorces. So they never filed a legal document in texas where they lived together for 13 years. Never filed taxes together, he had a farm business so they didnt have joint checking accts either. He moved in with her in her house, so she could remain close to care for her aging mother. He gets cancer and dies without a will and he has no children. She only works part time for the post office and doesn't really have the money to fight his family. They are now taking her to court to get his personal belongings, 2 dodge trucks and etc. I'm guessing she is going to have to represent herself. I felt like she had rights to everything since he had no children, he had land, lots of farm equipment, checking acct, etc. His family just recently before he died started calling her a "caregiver", but he lived with her and he helped pay bills, not rent, and he didn't pay her a salary or hourly. His family was not involved with us, he spent everyday including all major holidays with us and stood at my wedding as my step dad. What are her legal rights, how can we fight this?

Anonymous said...

Hi I live with the father of my child for 7yrs but he would leave and come back and we had a joint account,lease that said 2 married adults and 1 child and signed by him and me,we filed married as jointed then he got legally married to another woman that is having his babies twins.Does that make her marriage not vaild and will i be married to him. I never use his lastname but we did say we are husband and wife but now he is fighting that he was never married to me.

suzzy1102 said...

Hi chris, I lived in dallas texas with the father of my child off and on for 7yrs. We had a bank account, lease 2married adults 1 child and i sign it and he did too but i never use his last name.I use to call the bill and say that i was his wife. We did married as jointed in our income tax but then he left me and his child 3 months ago and got married to another woman legally w babies twins.Is her marriage vaild. Does that mean i'm married to him still?

Anonymous said...

I would like to know if a couple can claim commonlaw marriage while one of them is still legally married to someone else. They eventually married several years after the divorce but wasn't one of the parties a bigamist in the eyes of the law. This was done in Texas.

Anonymous said...

What is the main difference between a common law/informal marriage and a normal marriage? If i were to sign the declaration for an informal marriage, would my spouse and I still be able to have a "real" wedding later on? We are considering doing this because money is kind of tight right now but we would like to be looked at legally as man and wife. I guess I'm just unsure of all of the differences between being married in a church or signing these papers...

Anonymous said...

Very interesting Blog!

I have a question about common Law Marriage in Houston, Texas.

**My daughter passed away on 2/24/2010, at the age of 30. The ex-boyfriend is contending that he was "common law" married to my daughter.

**There may be a child involved. Currently waiting for the court to do DNA test.

***The ex has told: Child Protective Services, Houston Police, Harris County Family Court,Automobile finance Company,social security adm, and the Harris County Medical Examiner, that he was "common law" married to my daughter.
The Medical Examiner gave the ex 4 days to PROVE his marital status so that a legal "next of kin" could be named. He failed to provide any evidence (lease, bank statement,bills, insurance policy) and the was never a "signed declaration" filed with Harris County. I was named as "next of kin" for my daughter. In addition, the Medical Examiner made the "ex" sign a statement he wrote, that relinquished his claim to the "common law" status.

The "ex" was not named on the lease. The bank account was in my daughter's name only. The car note was also only in my daughter's name. The "ex" stole the car and used the atm card, after my daughter passed away. In addition he also took the keys out of the purse of my deceased daughter, and took most of the valuables out of the apartment.

My Question:
1). Is there a certain length of time to have lived together, to be considered as common law?

2). I want the "ex" to stop saying he was "common law" married to my daughter. Can I ask the Family Court Judge to make an order to that effedt, or do I go to a different court?

ReGina said...

You are informative yet witty. I like that. Here is one: Met guy, got pregnant, had marriage app, married(?) by family friend/pastor (?), no marriage license filed or received, had 2nd child; walked in on him and his 6th mistress and I moved out. 3 years later, he is living with a new woman. I have never filed joint taxes, no property in OUR name, no financial documents in OUR name, always applied for everything as single, and better yet, NEVER USED HIS LAST NAME. Am I still legally married or does the informal 2 year separation apply to me?
Sincerely,
Confused ReGina

ReGina said...

You are informative yet witty. I like that. Here is one: Met guy, got pregnant, had marriage app, married(?) by family friend/pastor (?), no marriage license filed or received, had 2nd child; walked in on him and his 6th mistress and I moved out. 3 years later, he is living with a new woman. I have never filed joint taxes, no property in OUR name, no financial documents in OUR name, always applied for everything as single, and better yet, NEVER USED HIS LAST NAME. Am I still legally married or does the informal 2 year separation apply to me?
Sincerely,
Confused ReGina

RCd said...

I live in NV and was with my daughters dad for 7 yrs off and on. I have never lived in TX but his mom does and we have been split full time for almost a yr now. I was served with divorce paperwork from TX and it states he has been a resident for 6 months which is not true. We never called eachother husband or wife or did we file taxes together. We were engaged but my question is does TX have authority to do a case since I have never lived there. We lived in CA and NV but never in a common law state. I have to respond to the paperwork within 20 days. If I respond does that give TX jurisdiction? We have a child support order in NV that he has never paid. What do you suggest I do on the response to the divorce?
Thank you

Anonymous said...

If you meet the three prong test does that mean you are automatically in an informal marriage, or do you have to file a declaration and complete the proper paperwork first?

Anonymous said...

If you meet the three prong test are you automatically deemed an informal marriage, or do you have to file a claim and legally pursue informal marriage status? And what is this 6month rule of law in Texas about informal marriage. If there is even such a thing?

tankhand1412 said...

Are you common law married if you share a bank account with a partner say a girlfriend