Transcript

Brandi Crozier: If you are living with someone and you’re in a relationship with someone, but you’re not married, or that you’re partners, but you’re not intending to be married because there are many people who don’t want to be married, but they do want to be in a relationship, but just make sure that those relationship lines are clear and that you also protect yourself financially and keep your accounts separate.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now here’s your host, Attorney Holly Draper.

Holly: Today I’m excited to welcome back once again my law partner, Brandi Crozier, to the Texas Family Law Insiders podcast. And today, I’ve been waiting to get her to talk about this topic with me for a while, but she kind of had to wait for something to get resolved first. But we’re gonna talk about a topic that she has gained extensive knowledge on this year, and that would be common law marriage. Also known as an informal marriage. So for anyone who might not know what exactly is a common law or informal marriage?

Brandi: Well, thanks for having me back on Holly. Happy to be back. The common law or informal marriage are marriages that are not done in a ceremonial fashion. Those are marriages that are more based on an agreement between the parties. You typically don’t have a big ceremony, you don’t apply for a license to marry. So they’re the types of marriages that people often think are like, you have a seven-year requirement, but you don’t. So it’s everything done outside of a church or outside of a justice to the peace to get married.

Holly: So I know you feel really passionately now about common law marriage. So why do you think this is such an important issue that family lawyers need to really understand?

Brandi: I think it’s twofold. I think people really need to be aware of this as practitioners in family law. One, because there are so many people that are cohabitating together before they actually get married or just live together in relationships. And there are factors that can be taken into account that you have to be able to prove to establish an informal marriage if you’re in Texas.

But I also think that this can be used as a weapon. If someone were to have a really bad breakup with someone and they decided, well, I’m going to get back at them and I’m just going to go ahead and file for divorce, because every claim of divorce or claim of marriage in Texas, rather, is treated as valid until it’s not.

So you could really wreak havoc on someone’s life, just for the sole purpose of doing that. I’m not saying that a court wouldn’t award attorney’s fees, but you could really throw a monkey wrench in someone’s current situation or life just because they were upset that they broke up.

Holly: So what are the legal requirements for proving a common law marriage?

Brandi: The Texas Family Code, 2.401, has that set out and you have to have three elements met. One, you have to have an agreement that you are married. Both parties have to agree to be married, and after that, you have to satisfy the second requirement that you also agree to be married, and you live together in Texas as husband and wife, and you also have to represent to others, the public, that you were indeed married.

Holly: So let’s break that down and go through each of those three elements. The first one, you have to agree to be married. I think in the handful of common law marriage cases that I’ve done over the course of my career, it’s really remarkable how one person can vehemently claim that they have had an agreement to be married, and the other person can vehemently claim that they did not, and yet we still have to litigate it and fight about it and see what the evidence shows us. So what are some ways that you can prove that there was an agreement to be married?

Brandi: So an agreement to be married, your evidence if you have a case like this, and whether you’re defending it or you’re representing the party who is claiming that there is a marriage between two people that’s informal, the evidence has to show that the party is intended to have a present, immediate and permanent marital relationship. And that they did, in fact, agree to be husband and wife presently, and it’s not something that just goes in the future.

So when you’re looking at that, the burden is on the person who’s claiming to be married that that intent, you have the burden to show that that was very clear. That the actual intent must be present. The things that can go to support an agreement of being married, and the intent to be married, is that you actually do have that agreement. If you have that in writing, text messages, things like that, would be really great to have.

There should be evidence from both sides. It can’t be just one-sided. So if someone sent a text message and said, I can’t wait to be your wife. That doesn’t mean that she’s actually someone’s wife. It means she can’t wait to be someone’s wife. Or saying, I’m so glad I’m your wife or something like that. That is one-sided. You have to have the other person also having evidence to show that they also agreed to that marriage.

So if one person just sincerely believed it or was delusional about it, or delulu, as the kids are saying these days, that’s not enough. You can’t just have like the occasional off-the-hand, oh, my wife or my husband or my forever. That’s not enough. It needs to be really consistent to show that it was like a long-term agreement. This wasn’t just a fleeting thing.

Holly: So does something like getting health insurance for this person and labeling them as your spouse, or filing a tax return as married? Do those things constitute an agreement?

Brandi: So they can. It depends on where these things happen. I think one of the biggest things is, is that these things have to happen in Texas. So if you have an agreement to be married, things that help support that position, that you are indeed married, are introducing the other person as your spouse more than once, and that this is a continual thing.

So if you are consistently going to parties throughout the year and they’re like, hi, this is my wife Brandi, or this is my husband Josh. Something like that, but it has to be consistent. It can’t be a one-off. If you have reservation bookings where you book a flight, or you book a hotel, and you put on there Mr. And Mrs., those are things that can help to support that there was an agreement to be married.

You can also, the case law also tells us that there’s if someone refers to someone as someone’s step-parent, that can also be sufficient evidence to help support someone’s claim. There’s another case that says, if you raise a family together, then that can be sufficient to show that there was an agreement between the parties to be husband and wife, coupled with the other factors as well. If you have joint bank accounts, that’s really good evidence.

Filing joint tax returns can also help. If you purchase property together, and when you execute those documents, those things are executed in your capacity as husband and wife. Same thing if you’re buying a car and it says on there you were husband and wife. Those are the best type of evidence to show there was that agreement, and it was a long-term agreement that you guys were married.

Holly: So the second prong, live together in Texas as husband and wife. So cohabitation. What does that exactly mean?

Brandi: You have to live together and you have to live together for a longer period than just maybe a weekend or two a month. So what the case law tells us on this is that you have to be together as husband and wife, cohabitating for a longer period of time. There are some cases out there that tell us that two months of a solid time is enough to establish cohabitation.

But if you are just living together with someone of the opposite sex and you’re having sex with that person, that is not sufficient. You also have to be holding yourself out as husband and wife. There’s other case law out there, if someone travels a lot, if that is the person’s true home base when they’re not staying in hotels, is the cohabitation with their spouse, then that is sufficient as well.

Holly: When I was prepping for this podcast, I was looking through some examples of what did or did not constitute cohabitation. I was surprised at how low the bar seemed to be for cohabitation. I know there was a case, there was an example of the husband lived in another country. Wife had a house here.

And just whenever the husband, whether or not his husband, was up for debate, I suppose. Whether or not the man came, he came here and stayed in her house, whenever he came to the United States, and then he would go back to his home. And that was considered to be enough to meet cohabitation, which really surprised me.

Because having a separate resident somewhere else seems to sort of negate that, in my opinion. And then I also was really surprised to learn how it doesn’t have to be continuous. So a week here, a week there. A month here, a month there. If you are regularly spending the night in the same place, you might be able to get there on this.

Brandi: You can. So it’s a bit scary in today’s modern time with people going in and out of relationships and living with different people. So it’s not necessarily something that we have a definitive amount of time that we stated this is enough to establish cohabitation after you’ve agreed to be married. But if you have agreed to be married, and you do then go and live with someone, and that is essentially your primary residence, and it’s in Texas, then that can be enough to meet that prong.

Holly: I also think it’s interesting, and I’m kind of bothered by the fact that it has to be in Texas. And the same thing with representing to others in Texas that you’re married. I really had never thought about that before, because I haven’t had to do a deep dive into the common law marriage statute in anything recently. And I guess if you think that you were common law married somewhere else, you better get back there and file your divorce sooner rather than later before you’re gonna have a problem.

Brandi: It’s a really interesting area of law because different states have different requirements to prove their equivalent of an informal marriage, or common law marriage. And so it there have been cases out there where they may have satisfied it in another state but not satisfied it in Texas. And then it becomes a question of, well, which state rules apply?

So if you were common law married in California, then you moved to Texas, but you didn’t satisfy those requirements because you two had separated, and then all of a sudden, this becomes your state where you would have to file divorce in, it’s an interesting area of law as to whether or not someone could actually bring a claim like that.

Voiceover: This episode of the Texas Family Law Insiders podcast is sponsored by The Draper Law Firm, providing family law appellate representation across Texas. For more information, visit draperfirm.com or call 469-715-6801,

Holly: It seems like, with the way the statute is written, that if Texas had jurisdiction, which I don’t know the answer to, to consider the divorce, Texas would then have to be applying the common law marriage statute of whatever state that common law marriage supposedly existed.

Brandi: Potentially. Or does that, if that state had common law divorce, which some states do, then were they even married when they moved to Texas? So Texas does not have common-law divorce. So just keep that in mind, too. If you actually have a common-law marriage, you actually have to get divorced. There is no common law divorce.

Holly: Is there not a statute limitations, though, on when you can claim a common law marriage after you’ve separated?

Brandi: Two years is usually the time frame that we’re looking at here. So if you’ve moved on after two years, and you’ve moved on past that, then that’s usually what we’re looking at.

Holly: Okay, so then the last prong would be to represent to others in Texas that they were married. And we would all often refer to it as holding yourself out as being married. What exactly does that mean?

Brandi: So it requires, and I think this is key, too, for practitioners to keep in mind is that this requires both parties to hold themselves out as married to the other person, not just one. So if one person is saying to someone, this is my wife, this is my husband, and the other person does not do that with the other person, then that’s not enough. Both parties have to hold themselves out, and it has to be consistent.

Holly: Let’s say though the man is holding, saying, is introducing her as his wife, and she doesn’t correct him. She doesn’t turn around and say, Yes, this is my husband, but she just, you know, shakes the person’s hand and meets them. Does that count?

Brandi: It has to be consistently representing themselves, and this is where that comes into play. So case law isn’t exactly clear if they don’t correct or deny it as to whether or not that’s sufficient, but we do know from the case law, that it has to be both parties have to consistently represent themselves as being married. So not correcting someone, I think it’s going to depend on your judge or jury as to what they would take that into consideration for the evidence to support a holding out of marriage.

Holly: So who has the capacity to enter into an informal marriage?

Brandi: So anyone who can legally marry in a formal marriage ceremony. So you have to have, you can’t be a minor. Obviously, can’t be related to each other, or if you’re presently married to someone else, you cannot be informally married to someone that you’re claiming to be informally married to. So the soonest that you could potentially make a claim of informal marriage if you are divorcing, would be your date of divorce, or the day after your date of divorce.

Holly: So if you have been holding yourself out as married to this person for months or years, even though you were technically still married to someone else, does that become an informal marriage upon the dissolution of the first marriage?

Brandi: It does not because the prior marriage is an impediment to an informal marriage. You can’t be married to two people at the same time. So then when we’re looking to see when was there an agreement to marry, and then going down the two other prongs of holding someone out, and then also cohabitation, it’s going to start when we’re looking at the time that your marriage ended.

Holly: So what are the legal effects of an informal marriage?

Brandi: If an informal marriage is found, then it’s going to be treated like any other divorce. So when you’re going through a proceeding and someone claims an informal marriage, but of an interesting note, you don’t actually have to plead for a common law marriage. So one of the questions you absolutely need to be asking the client as they’re saying, well, I was never married to them.

And say, okay, well then tell me more about this. You don’t actually have to plead for that. Now there are arguments as to whether or not maybe you should or shouldn’t or have to disclose that, because then is that trial by ambush in order to get ready for a trial?

But your first step would be, once you figure out that there was no formal marriage here is that you’re going to want to file a motion to bifurcate out the issues of the divorce, and then you want to start first with the existence of a marriage. That’s going to be key, because that’s step one, in order to figure out if the parties were married, and if there is no marriage, then you don’t have to go forward with the divorce proceedings.

Holly: So if you are in a situation where you’re representing a client and they’ve been sued by an ex for divorce based on an informal marriage, what is the quickest, most effective way to get the court to rule on that issue and that issue alone?

Brandi: File your motion to bifurcate immediately and get that set.

Holly: Just a regular final trial? Or do you need to file for a declaratory judgment? Or what’s the actual step? What are you actually filing to get to that point?

Brandi: So you’re going to start with your motion to bifurcate and get that existence of a marriage set, and you’re going to want to ask for specific parameters around what discovery can be conducted. You want it to be limited to whether or not there’s an existence of a marriage. So you’re not having to produce all of the things that we would otherwise have to produce during regular divorce proceedings.

Holly: And that’s just a regular final trial. It’s not an MSJ, it’s not a declaratory judgment, anything like that.

Brandi: I think you probably could do that, depending on what evidence is there. So if someone does go through and they conduct discovery and there really is no proof of the existence of an informal marriage, then you might be able to go forward and do some sort of like no evidence session for summary judgment or something like that.

But if you don’t, then you don’t, then you are gonna have to proceed with the final trial. And because so much of this comes down to a he said, she said, or she, she, you know, in today’s times, and then you really would likely have to go to trial on this.

Holly: Yeah, and I think it can, you really have to think about your judge, and is it worth the expense of discovery and trying to do an MSJ, because, you know, the denial of an MSJ is not appealable. So is your judge likely to ever grant a motion for summary judgment? It seems like if they are, this is a situation where they should do it. But we know in family law, a lot of judges are not fans of summary judgment. So that may be a situation where it’s like we just got to have a trial.

Brandi: And I think that’s where most of these end up. And beware, because this is something a jury can decide in Texas. So they’re trying to rack up fees and drag this out as long as possible. That is potentially something that someone who’s claiming to be married can do, and we all know that getting jury trials is more work and a longer time in court usually.

Holly: So if you’re an attorney, and someone walks into your office or hops into your Zoom Room if you’re virtual, and they say, I have an informal marriage, and they want to sue for divorce. What sort of due diligence do you think that attorney should do ethically before filing that type of a suit?

Brandi: I think you need to ask the questions of your client. I think you need to do an intake of going through the things that we’ve talked about during this podcast of, okay, what are the prongs here? And then, does this person have enough to support this claim? Because if they don’t, then there are sanctions that I’m sure the other side can bring against you, attorneys fees, all sorts of things.

And your reputation is valid in the community too. Because I very much think that this claiming for informal marriage can be used as a weapon. And there are some cases out there where maybe two of the three prongs exist, and so is it worth going to trial over? Or maybe it’s one of the three prongs exist. But those are the cases that probably should pursue this.

But I think to protect your practice and make sure you’re not representing people who are trying to use this as a weapon because if you claimed the marriage is valid until proven otherwise, you really need to ask the pointed questions at the beginning to see what you can get as far as evidence goes.

Holly: So I know that our targeted audience is lawyers, but we do have some non-lawyers that will listen to the podcast when the topic is relevant to them, so in case any of them are listening, if someone has a concern, is this going to be considered a common law marriage? Is my significant other potentially going to make this claim against me? Do you have any advice for what they could do to help create the proof they need that this is not a marriage or to protect themselves in that sort of a situation?

Brandi: I mean, of course, hypothetically, because we don’t give legal advice on the podcast, but we want to make sure that I think this is just the old adage, don’t join your accounts. Don’t do those types of, intertwine your life with someone else, like a married couple would do. If you are single, you are single until you are actually married.

And so I think just making sure you’re keeping your singleness valid. Don’t file joint tax returns. Make sure that if you do have a joint checking account, or something like that, because you live together and you’re putting that money in there for maybe some bills. But it really probably shouldn’t be one-sided.

You should be sharing in those equally. And then just be mindful of how you’re introducing each other, and how you are introducing yourself, how you’re referring to someone. I think a lot of these things can get really messy and muddled pretty quickly, and you just need to be mindful of that to protect yourself.

Holly: I agree 100%. So any other last tips or thoughts about common law marriage that you think our listeners need to know?

Brandi: I think be diligent. And I think that if you are living with someone and you’re in a relationship with someone, but you’re not married, you need to be very clear about your intentions and everything else about that, that you all are not spouses, and that you are just boyfriend and girlfriend and or that you’re partners, but you’re not intending to be married, because there are many people who don’t want to be married, but they do want to be in a relationship. But just make sure that those relationship lines are clear and that you also protect yourself financially and keep your accounts separate.

Holly: All right. Well, thanks so much for hopping on with me. I think we’re about out of time and have covered all that we need to on this topic. So for our listeners, if you enjoyed this podcast, please take a second to leave us a review and subscribe so you can enjoy future episodes.

Voiceover: The Texas Family Law Insiders podcast is sponsored by The Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.draperfirm.com.