• timothyagriswold

Common Law Marriages in Texas

Updated: 5 days ago

Ten states in the United States, as well as the District of Columbia, recognize "common-law marriages." Texas is one of those states.


Common law marriages take place in Texas when: 1) the parties have made a declaration of marriage pursuant to Family chapter 2, subchapter E; or 2) the parties have agreed to be married and thereafter have lived together in Texas as spouses and have represented to others that they are a married couple.


A party seeking to establish the existence of a common-law marriage must present sufficient evidence to meet one of the above two criteria. This is typically done in family law divorce proceedings and in probate proceedings. In either type of proceeding the court imposes the burden of proof on the party seeking to have the marriage confirmed based on the "preponderance of the evidence" standard. Under this standard and in light of the evidence presented, a reasonable factfinder must find that it was more likely true than not that a common law marriage exists or existed (in the case of probate actions). See Weaver v. State, 855 S.W.2d 116, 120 (Tex. App.—Houston [14th Dist.] 1993, no pet.); Hightower v. State, 629 S.W.2d 920, 924 (Tex. Crim. App. 1981).


Once the common-law marriage is recognized, it, like any other marriage, may be terminated only by death or a court decree. A spouses’ subsequent denials of the marriage do not undo the marriage. Estate of Claveria v. Claveria, 615 S.W.2d 164, 167 (Tex. 1981).


What Type of Evidence Must be Presented to Establish a Common Law Marriage?


The following factual situations have been found by courts to be evidence establishing the existence of common-law marriages:


1) A specific and mutual agreement to create a common-law marriage. Estate of

Sinatra v. Sinatra, No. 13-14-00565-CV, 2016 WL 4040290, at *2 (Tex. App.—Corpus

Christi–Edinburg July 28, 2016, pet. denied) (mem. op.).


2) Evidence showing the parties intent to have a present, immediate, and permanent marital relationship and that they did in fact agree to be spouses. In other words, the parties cannot agree now to agree later to be married (confusing enough? said differently, there must be a present agreement to be married immediately; not an agreement to be married sometime in the future.) Aguilar v. State, 715 S.W.2d 645, 648 (Tex. Crim. App. 1986) (en banc); see also Leal v. Moreno, 733 S.W.2d 322, 323 (Tex. App.—Corpus Christi–Edinburg 1987, no writ).


3) Like any finding of fact, common law marriage can be established by either direct or indirect evidence (also called circumstantial evidence). A fact is established by direct evidence when proved by documentary evidence or by witnesses who saw the act done or heard the words spoken. A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved. The law generally doesn't place greater weight on one type of evidence versus the other. Each item of evidence, regardless of its type, must be evaluated based on its unique strength or weakness. For instance, eyewitness evidence (direct evidence) is often mistaken, especially when a person subject to such witnessing is of another race; but if you see water on the sidewalks, trees, cars, etc., all around you (i.e., circumstantial evidence), that can be very strong evidence that it has rained.


Examples of factual situations that have helped proved the existence of a common law marriage are, among others, as follows: raising a family together (see Brooks v. Hancock, 256 S.W. 296, 297 (Tex. App.—Texarkana 1923, no writ); establishing joint charge accounts naming the parties as spouses (see Rosales v. Rosales, 377 S.W.2d 661, 664 (Tex. App.—Corpus Christi–Edinburg 1964, no writ); filing joint tax returns (Day v. Day, 421 S.W.2d 703, 705 (Tex. App.—Austin 1967, no writ); jointly acquiring property or signing secured transactions by and between the parties (see Rodriguez v. Avalos, 567 S.W.2d 85, 86–87 (Tex. App.—El Paso 1978, no writ); representations to governmental entities regarding marital status (see Leyendecker v. Uribe, No. 04-17-00163-CV, 2018 WL 442724, at *5 (Tex. App.—San Antonio Jan. 17, 2018, pet. denied) (mem. op.), etc.


The statutory requirement of “representing to others” is synonymous with the judicial

requirement of “holding out to the public.” “Holding out” may be established by the

conduct and actions of the parties. Eris v. Phares, 39 S.W.3d 708, 714–15 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).


A couple must have a reputation in the general community of being married. Small v. McMaster, 352 S.W.3d 280, 285 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). An occasional introduction as spouses has been found, however, to not in itself establish the element of holding out. Winfield v. Renfro, 821 S.W.2d 640, 651 (Tex. App.—Houston [1st Dist.] 1991, writ denied). However, a couple who cohabited almost thirty years, had three children together, and held themselves out to be married, with the wife never correcting the husband, were found to be informally married. In re A.D.J., No. 05-17-01437-CV, 2019 WL 1467962, at *5–6 (Tex. App.—Dallas Apr. 3, 2019, no pet. h.) (mem. op.).


NOTE SPECIFICALLY: A claim of informal marriage must be brought before the second anniversary of the date on which the parties separated and ceased living together or it is rebuttably presumed that the parties did not enter into an agreement to be married. Tex. Fam. Code § 2.401(b). Like any presumptions, they can be overcome by sufficient evidence. Still, presumptions can make the task of proving a common law marriage more difficult.


Due to the evidentiary requirements, if you are facing a contested divorce or probate action that pivots on a finding that you or your spouse entered into a common law marriage, it's best to work together with a competent lawyer to present your case effectively.

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