In Texas, two people can have a common law marriage which can be proved by:

  • A present agreement between two people to be married and to present themselves to the public as a married couple,
  • They cohabit in this state as a married couple, and They present themselves to the public as a married couple.

In theory, this marriage could be proved when a couple checks into a hotel and signs the register as a married couple (for example, Mr. and Mrs. Jones). In real life, this proof will be required to be more tangible. Evidence to prove a common law marriage is not fixed and is left to the discretion of the trial court judge.

It was recently proved a common law marriage of a client to her deceased husband, who was also found to have died in the line of duty (deputy sheriff):

  • The couple had cohabited and presented themselves to the public as married,
  • They had a child together.
  • After the couple appeared to have separated, and did live in separate counties, the husband sued for divorce.  The court (reading the law) found that when the husband sued for divorce, he publicly declared that he and his wife were married.  The husband later dismissed the divorce suit, thus confirming that he was still married to his wife.
  • The husband was, at the time, involved with another woman.  She dragged him to the county clerk’s office and had him sign a common law marriage certificate with her, and they cohabited in Texas, and she told people they were married. The husband subsequently died in the line of duty while on duty as a deputy sheriff.  He died intestate.

 

The wife was seeking advice on state and federal government benefits to which she might be entitled, and to secure her maternal rights as her child’s guardian – she feared her deceased husband’s parents would sue for guardianship of their child. The case to prove a common law marriage must be brought to the court within one year of the deceased spouse’s death. I opened probate on the deceased husband to have the wife appointed administrator of his estate; a separate declaratory judgment action to prove the common law marriage. The husband’s divorce petition and his subsequent dismissal of the divorce action confirmed for the judge that the couple had a common law marriage.  Once married, this marriage could only be terminated by death or divorce – thus, the second woman’s attempt to use the common law marriage certificate had no merit – bigamy is illegal in Texas. The state and federal government entities provide benefits for the survivors of a peace officer who dies in the line of duty.  These bureaucrats have their own rules on “survivor”.

The wife had to prove that although she and her husband resided in separate counties (not contiguous), they were still a couple.  We proved they were separated by financial and educational needs but still maintained their marriage – there was no desertion by either.  The husband’s job in one county in central Texas as a deputy sheriff prevented him from moving – and the wife’s pursuit of a master’s degree in social work at the University of Houston which required her attendance at classes required her to live several counties distant from her husband.  His marital infidelity was a burden we overcame with facts of the husband traveling on a regular basis to stay with his wife and child, and dismissing the divorce petition. Ultimately the trusted attorney successfully proved the marriage and obtained a declaratory judgement recognizing the marriage – which was recognized by an amended death certificate. This is why it is important to work with an experienced professional such as the Lawyer Clear Lake Shores TX  locals turn to. And proved the marriage to the satisfaction of the state and the feds – state benefits were paid to the wife and child of more than $250,000 plus future money for college; federal benefits were paid to the wife and child of more than $250,000, plus future money for college.

As the child’s mother, the wife legally maintained her status as his legal guardian.  The grandparents had no standing to contest guardianship.

Other evidence to prove common law marriage which are considered by the court:

  • Same residence address
  • Sharing credit card liability as husband and wife
  • Sharing insurance, naming beneficiary of life insurance/401K other benefits – name the beneficiary, “my spouse” “my wife” “my husband”
  • Owning real property as husband and wife
  • Filing tax returns as husband and wife
  • Introducing your spouse to others in public – as your spouse.
  • The same rules apply to same sex couples – overcoming the hurdle of “husband and wife” – to show married –
  • Obtain and record a certificate of common law marriage from the county clerk.
  • Birthday cards
  • Live testimony from the surviving spouse – difficult and should be supported by live testimony from others that the deceased spouse confirmed the marriage =  this can be a difficult “sell” without documentation of the marriage.

 

 Thanks to authors at Amy Rose Oliver for their insight into Family Law.

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