In this podcast episode, Jake Gilbreath and Brian Walters discuss common law marriages (also known as “informal marriages”) in the state of Texas. The partners discuss the legal requirements that have to be met to be considered informally married in Texas and their experience handling complex divorce and child custody cases involving these types of marriages.
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Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Both partners are experienced trial attorneys who have been board certified in family law by the Texas Board of Legal Specialization.
Brian Walters: Alright, welcome back to “For Better, Worse, or Divorce”. I’m Brian Walters here with Jake Gilbreath. Today, we’re going to discuss common-law marriages or what’s really an informal marriage. It’s a legal term. Jake, do you want to tell us a little bit about that, about what the concept is behind it?
Jake Gilbreath: Yeah. The most common, obviously, marriage, go down courthouse, get a marriage certificate. That’s a marriage with formality. Texas does recognize it. Not every state does, which can actually have an interesting interplay when a spouse is going through a divorce in Texas with an informal marriage. Texas recognizes what we call ‘informal marriage’. I think people a lot of times say common-law marriage, but like you said, the Family Code talks about marriage without formalities.
The concept is essentially that you can be married without actually having the formalities of a marriage license, and the law would still recognize you as married. You would go through a divorce just like if you were formally married. Now, you have to have that initial question though before going through a divorce when there’s informal marriage or common-law marriage. You have to have the initial question about whether or not these people are married.
The Family Code sets forth what needs to be proven in order for there to be an informal marriage. The most simple is if there’s a declaration of informal marriage. It’s something you can fill out, and it’s filed. That actually creates a presumption, a rebuttal presumption of an informal marriage. That’s one way of it being proven.
What people most often hear about is essentially three prongs, which is whether or not there’s an agreement to be married. After that agreement to be married, was there what we call holding out? The Family Code actually says, “They represented to others that they were spouses,” but we called it sort of holding out. Was there an agreement to be married, and was there holding out, and was there living together as husband and wife? All this having to take place within the state of Texas, the holding out and living together in the state of Texas.
So it seems relatively straightforward, right? Just have to prove those three things. May not be that easy. What disagreements do you see? I will say it’s rare that folks come in, both sides go, “Yeah, that’s right. We’re informally married. There’s no dispute. We want to get divorced.” Typically, we see it when one person is claiming that there’s an informal marriage, and the other side is saying there was not an informal marriage. So how you see this come up in your practice, Brian?
Brian Walters: It comes up. I think, for me, there’s also sort of a practical question, which is, is this a fight worth having? Why would it matter if you’re married? Well, if you have children together, it doesn’t matter. You can be married or not. It really essentially makes no difference. Then the question becomes money. It’s about the rights to marital property or possibly to spousal maintenance that would exist if there was a marriage, which there might not otherwise be.
I think there’s several situations where it still doesn’t make sense to pursue it, right? I mean, if, for example, you’ve been married a very short time or nobody’s acquired much in the way of marital property, then what’s the point of having litigation about it? Or if it’s kind of a wash that it wouldn’t really make any difference whether you were married, however you handled your finance, it might not make sense at all.
Typically, what we see is when somebody comes in and they’re wanting to prove it, it’s that there would be a financial advantage to them. Let’s say the other person earned more money than them during the marriage or maybe they’re married a really long time, and they think they’re going to qualify for alimony or spousal maintenance. That’s usually where it comes in.
Jake Gilbreath: Right. Sometimes there’s no dispute that they’re married, and then the question is when they are married. You see a lot of times couples where somebody says they’re informally married, say, in 1995, and then seven years in, they decide to get formally married, and go down, get a marriage certificate. Don’t change anything though. Then one spouse says, “Well, the date of marriage is 2002 when formally married.” The other spouse says, “No, it was 1995 whenever we agreed to be married, and thereafter lived together as husband and wife in the state of Texas, and represented to others that we were married.”
That can have a huge impact on the finances of it. I mean, like you said, if we have kids, we’re going to be going through our custody, I guess, dispute or fight. May not be a fight. We’re going to have to resolve custody matters for the child, but it could have a huge impact on whether or not things are community property and divisible.
If Brian and I are living together, and I say, “We’re informally married,” and Brian says, “No, we’re not,” that could have a huge difference. Because if we’re not, then we’re just roommates. Then we just take our own stuff and go. If we’re married, then that’s obviously a much bigger topic.
Then, obviously, the date of marriage can make a difference, right? We see it sometimes. Maybe somebody purchased a house during the time that somebody claimed that they were informally married. Then they got legally married after the purchase of the house. Then that question can determine whether or not the house is separate property or community property or not. I mean, I’ve seen them in the millions. It could have millions of dollar’s worth of financial repercussions.
How do you prove it if you have the person coming and saying, “Informal marriage?” Brian, what type of stuff do you typically see to prove an informal marriage?
Brian Walters: Yeah. I mean, I would want to see things like tax returns. That’s pretty important. For example, if you earn a certain amount of income or certain things happen in your life financially, you’re required to file an income tax return. It’s against the law to put anything false on a tax return. Pretty much the first thing you have to do on your tax return is say, “My marital status is single,” or, “Married,” one of the two or separated is the third one, I guess, which we don’t have in Texas.
If a couple’s filed tax return for 20 years that they’ve been living together, and for 20 years, both of them have said, “I’m single,” that’s going to be a pretty hard row to hoe, I think. Another one is insurance documents. Typically, when you apply for auto insurance or health insurance or life insurance, you need to disclose your marital status. That’s another common one. When you purchase a piece of real estate, the example you used, the deed will say specifically, “This person is a married person,” or, “A single person.” You’re signing the deed say, “Yes, I am married,” or, “Yes, I am single.” Those are all ones that come to mind.
I think these days, some other common ones are social media postings. Someone seven years ago post on Facebook, “Hey, we just got married today in our backyard.” Then the other person who they married put a like on it. I mean, sounds like an agreement to marry, and it sounds like there was a date for that too. So all those kind of things can occur.
A formation of a business is another one. Sometimes that does require you to put a marital status in that. I think the formation of a business, I have one of these right now, is another very high leverage moment where, the way that the laws are in Texas, if your business has an LLC, whatever is formed before the marriage, and stays an LLC, and stays essentially unchanged, then that’s going to be become very valuable, as in this case. That’s going to be a big deal versus whether it was formed during the marriage and regardless of who’s on the LLC. Those are all things that come up.
Jake Gilbreath: I’ve yet to see one that’s all the same, right? It’s always some different piece of evidence. It always comes from different aspects of folks’ lives. I will say I don’t think I’ve ever seen one where somebody’s filed tax returns as…Actually, I think the first one I litigated, they actually did file tax returns married, which made the case relatively straightforward and easy at that point. The spouse claiming they weren’t informally married. It’s like you represented to the federal government that you were. Kind of the end of the conversation on that one.
A lot of times, they’re not as clean-cut. Maybe it’s one purported spouse never saw the tax returns. They never filed his or her own tax returns or just never thought of it. All this goes to holding out, the representing to others that you are married. That’s the type of stuff that that’s kind of in the conversation. You file a tax return. You say you were married. Okay, there we go. That’s black and white. It’s on paper. We can see it. Health insurance, we can see it, although people usually come up with some story. Sometimes it’s just that clear.
You could have holding out by witnesses coming in and saying, “Look here. I met them at our kid’s birthday party two years ago, and he said, ‘This is my wife, So-and-So,’ and she said, ‘This is my husband, So-and-So.'” There we go. I mean, that alone could meet the element of represented to others. It does meet the element of representing to others that you’re husband and wife, that you’re married.
It could be exchange of cards. I’ve seen people use that as evidence. They refer to each other as husband and wife. I think I saw one where they refer to each other as hubby and wifey. There was a dispute about whether or not they were informally married.
What’s interesting to me, it’s all folks’ reputation. It’s case law that said, “The reputation to community as being married could be evidence of holding out.” Just neighbors, friends coming in and saying, “We thought these people were married,” or, “We just always assumed that these people were married.” That could be evidence of holding out. That’s more concrete evidence.
In my opinion, one of the hardest things is not necessarily the holding out. I mean, you either have holding out or you don’t. People can usually scrape together some holding out if they’re going to make the claim. Some witness that’s going to come in and say, “I heard them say husband and wife.” If you can’t even scrape together that evidence, then it’s probably a bit problematic in bringing your informal marriage claim.
Living together as husband and wife in the state of Texas, that’s usually not difficult to prove. Either you did or you didn’t. Although, I guess, Brian, have you ever litigated what ‘as husband and wife’ means? Because I know there’s conflicting case law throughout the States of what as husband and wife means, right? Is it as simple as, “Hey, we live together,” and that’s it or, “We live together, and we have sexual relations?” Does that make you husband and wife or is there another component? Have you ever litigated that?
Brian Walters: I haven’t litigated it, but it comes up. I just ask them if they’re having sex, and I think that’s what that means. I think that’s also interesting about the living together that way because then what if somebody splits up for a while, then they get back together later? Is that a break in the marriage? Do you restart the clock? Does it end at some point? That’s an interesting question. Again, that’s an issue we have in a case I have right now. I have a hearing tomorrow.
Jake Gilbreath: Because the case law’s really clear. You have to have all three elements, right?
Brian Walters: Right. Then it says essentially that if you split up and then nobody claims in a legal proceeding that you were married in an informal marriage, then it’s like you never were. You’ve got basically a two-year statute of limitations to come in and prove that. I wonder what other states do. I know Texas is one of only eight states that has this.
I wonder what other states do when some couple just didn’t fill out the paperwork right down at the courthouse, and they don’t have informal marriage, and 30 years later, I don’t know. What happens if you didn’t pay the right fee, and you never got your marriage certificate stamped? And 30 years later, and you’re trying to get divorced, and State of Missouri tells you, “Well, you didn’t get-“
Jake Gilbreath: It turns out you’re not married.
Brian Walters: Yeah, I don’t know. Or you move to another state too. That’s a whole other adventure in this.
Jake Gilbreath: Well, and on that, it’s interesting to me every single time I litigate that. There’s not a ton of case law out there on this. They usually get resolved or there’s not a ton on, for example, the statute of limitations you mentioned. That’s there, but it’s also a presumption, right? The Family Code says, “If you separate and if there’s not a divorce filed within two years of separation, it’s a presumption that there was an informal marriage, but you can overcome the presumption.”
I’ve tried those cases before where people separated. I tried one going all the way back to 1995 and they separated in 1998, which is another interesting topic about informal marriage. Well, research this and see what the… There’s not a whole lot of case law on it. A lot of times, you’ll see situations where people separate and nobody files for divorce. Then you see this probate too. Years later, somebody comes in and claims informal marriage.
What’s interesting… There’s no informal divorce. There’s only formal divorce. Think about that. Let’s say me and somebody get informally married in 1995. There’s evidence that we agreed to be married, and we held it as married. Then we separated in 1995.
Let’s say I go down my way. I’m not going to file for divorce because I never think that we were informally married. I think there wasn’t an agreement. Obviously, me as the person not saying the informal marriage, I’m not motivated to go down to the courthouse. I guess it’d have to be through a declaratory judgment and file a declaratory movement action that I’m not married. Obviously, I’m not going to do that.
Well, the person that thinks we are married, what if seven years from there, Jake gets run over by a bus? The only heirs are my children, and then somebody shows up from 1995 and says, “Hold on. I was informally married to them. Here’s the evidence.”
At no point from 1995 to when I get hit by a bus would there really be a legal mechanism for me to say… I’ll give the technically correct answer in a second, but really there’s no legal divorce for me to go in and file something at the courthouse to say, “Hey, by the way, that person I lived back in ’95, we weren’t married just so if I ever die, don’t let any of my assets go to her,” or, “Don’t let me get sued.” The technically correct answer is you can file a declaratory judgment law declaring that you’re not married, but who on earth is going to do that? So that’s an interesting topic that comes up.
The other interesting topic, kind of going on what you were talking about, Brian, I think the case law is really clear, is that Texas, the Supreme Court has weighed in on this, says, “You cannot have an informal marriage date from a time period when you were living in a state that does not recognize informal marriage.” New Jersey, for example. New Jersey does not recognize informal marriage.
Let’s say it’s undisputed that in 1998, they agreed to be married, told everybody, “We’re married,” had a big wedding ceremony, but never formally did it in a state that doesn’t recognize informal marriage. Then 15 years later, they moved to the state of Texas. Then 20 years later, somebody wants to go through a divorce. What’s your date of marriage? Is it the second you step into the state of Texas? Do you have to have a new agreement?
I’ll tell you I argued that on a district court level. It has not gone up in appeal yet. Do I have to have a new agreement? Once I cross the border to this great state, do I have to look in my spouse’s, or I guess not at that time spouse’s, eyes and say, “Now that we’re in the state of Texas, I would like to agree once more that we are husband and wife?”
I mean, it’s just stuff that nobody thinks of. That’s why these cases are so interesting and every single one is different. There’s a lot of I don’t knows that just haven’t been litigated.
Brian Walters: Yeah. Right. There’s a variation on that question I had a while ago, which also answers one of the questions we had asked for us, does this apply to same-sex marriages, which it does. We refer to husband and wife just because that’s what the statutes say, but certainly does. It makes no difference anymore.
But then what about a point when in Texas, you couldn’t have a same-sex marriage? What if you got together, as this case I had, in the ’70s, two ladies and lived together but could not get formally married? You could not get informally married at that point, and then it became legal one day. In fact, it voided the Texas statute. There was several interesting cases that came up around that time, and probably still some are floating around out there. People just haven’t split up yet.
The question was, well, if you were living together and had an agreement to be married, but not formally, did you become married on the day Obergefell, I think was the name of the Supreme Court case, came down that said, “It’s okay now?” Or was it just back in time in the ’70s when you first started living together and had an agreement to be married but couldn’t legally? Seems to be the conclusion was that you could go back in time to whenever you met the points of it, even if that wasn’t possible to do at the time.
Now, of course, if you did that in New Jersey, that would be a problem because then you couldn’t, even though New Jersey didn’t allow because you were same sex, they just didn’t allow it period. So all very complicated sometimes.
Jake Gilbreath: Well, the other thing that’s interesting on that… I don’t think it’s been totally resolved, is my understanding. It will be at one point. Okay, here’s a fact scenario. I don’t know if people find this interesting or not to talk about this. It’s just two family lawyers thinking about worst-case scenario that hasn’t been litigated.
Okay. Let’s say in the 1980s, I’m in a same-sex relationship. I’m in a same-sex relationship just say two or three months. I look over at this gentleman that I care for very deeply and I say, “Let’s be married.” We agree to be married. We call our family. We say, “We’re married. We live together as husband and husband,” but it’s 1980, and so it’s going to be another 35 years before US Supreme Court finally comes in and says that we’re going to treat same-sex couples like human beings. Shocking that that took 35 years, but okay. Shocking or not shocking, depressingly, I guess is it… 35 years until they say that I can be married.
Well, rewind to 1985. Let’s say we’re together. We’re married for a year, and then it doesn’t work out or he cheats on me or he decides that I’m not as charming or as interesting as I think I am, and he leaves me. Well, sitting there in 1986, I can’t get divorced. In fact, I’m only 22 years old or something like that, and I cannot get divorced. In 1986 in any state in the United States in a same-sex couple, I cannot get divorced.
But you’re telling me if I stayed unmarried or even if I remarried, Obergefell comes down, and you say, “Well, then your date of marriage is back when it’s undisputed that you agree, held out, represented to others, lived together as husband and husband.” Okay, well, time out. I would have divorced this guy back in the ’80s if you told me that I could have done that.
Then on the flip side, how could it be the date of the US Supreme Court decision? Because there’s always been that fundamental right to get married. It’s just we didn’t recognize that fundamental right until 2015. All interesting. It comes down to every single case is different, and every single case is very, very fact-specific. It just requires strong advocacy for your clients, but it can have a huge result on some of these.
Because, again, once there’s that establishment that there is an informal marriage, well, then you just proceed like any other divorce, which every single divorce is different. But the assets, the debt, the marital state is divided and adjusted in the right matter just as if we have a formal marriage certificate.
So a lot of times, people have questions, “Are our assets going to be the same? Is spousal maintenance going to be the same? Is separation community going to be the same?” The answer is, yes, going to be exactly the same once we establish, one, were you all married, and, two, what’s the date of marriage. Once that’s established, then it just proceeds as any other divorce.
So talk to me about this, Brian. I want to talk about bifurcation in jury trials. What is bifurcation, and do you think that has benefits in an informal marriage litigation?
Brian Walters: Yeah. In fact, one I have right now that I actually have a hearing tomorrow requesting a bifurcation. Bifurcation just means to break it into two pieces, right? Here’s the reason you do that, is that it takes a lot of time, effort, money to get ready for a trial. More complicated the trial, the more issues there are, the more time, money, and effort it takes, and the longer it gets to trial.
So if you have this threshold issue of were you actually married informally in this case, if you get that issue resolved, then if the court says, “No, you weren’t,” then we don’t have to get into all the money stuff, right? Who owned what, when, how much is the business worth, whose going to get stuck with this debt, is there going to be spousal maintenance, all that kind of stuff.
Typically, especially if I’m defending one of these where we’re saying there’s not been a marriage, then I’d want to bifurcate it to try to get that specific issue of were you ever married resolved, especially if I think we’re going to win it. Then win it quickly, easily, cheaply, and I get my client on with their life versus otherwise.
Now, if the answer is yes, and you are married, and now you need to go figure all the money stuff and then come back for another trial, and I handled one of those type of cases last year, then that’s probably more expensive in total, I would say, to do it twice because you’ve got two trials. It takes longer.
However, the reality is statistically most cases settle. Therefore, you probably would be best of getting it bifurcated and get that first question answered, or maybe that leads to a settlement of the whole matter at some point because probably what’s going to happen is you’re going to tell your client, “Look. I mean, that’s reality.” We can’t ever say 100% something’s going to occur because we’re not a judge, and the law’s usually not that clear.
So we might say to a client that we’re defending, “I think there’s an 80% chance that the court will find that you’re not married, but if that 20% chance comes through, you could be on the hook to give them $2 million.” If it’s just a business decision, you’d say, “Well, 20% of $2 million is $400,000, and one option would be to settle in that range, and be done with it, and not spend a bunch of money on lawyers on top of it.”
Some people don’t want to do that. “I was not married, and I’m not going to pay this person a penny. They’re just trying to suck me dry.” I totally get that. Yeah, that’s a long answer to your question. I hope that was helpful.
Jake Gilbreath: Yeah. Well, it all comes down to it depends, right? And anytime there’s an unknown in the litigation, only a bad lawyer will give a guarantee. That’s the sign of a bad lawyer is somebody who’s just trying to sell you something that they say, “I guarantee you this will happen down at the courthouse.” That is a sign of a bad lawyer. We can talk about what’s likely to happen and what the law is, but there are no guarantees as litigators find out all the time.
Anytime there’s an unknown, because if you’re claiming informal marriage, and you’re sitting, even if you think you have the strongest case in the world, 90% chance that we’re going to win this, but that 10% is a ‘you lose’ period. If it’s a no informal marriage, a lot of times, there may be some legal claims depending on the relationship. A lot of times, that means that you get nothing. And so anytime there’s that uncertainty…
And on the flip side, you’re saying, “There is no informal marriage. I’m not paying them anything.” Well, let’s say we go down to a judge or a jury, we’ll talk about a jury in just a second, and they say, “Yeah, you are. You are informally married.” Well, there goes your leverage with the other side when you sit there, and once you get that question answered, somebody’s going to lose a lot of leverage. Somebody’s going to be completely out that they’re claiming informal marriage or somebody’s not going to be able to use that as leverage.
It’s awful obviously to think about things this way, particularly when there’s kids involved, and it’s family law, and it’s sensitive, but that’s how you have to think about it, the business aspect of a divorce and when there’s a disagreement. That’s something that we do and advise clients on.
Well, lots of things to toss in the mix, but one more major thing to toss into the mix is jury versus non-jury. A jury can actually decide whether or not folks are informally married or not, which I think surprises a lot of people. They just think, “Oh, we’re going to go talk to a judge,” but you can make a jury demand on this. Have you ever had to litigate one of those?
Brian Walters: And that’s putting it in the hands of a jury instead of a judge, which has its pluses and minuses, right? It’s an option you might do if you get a sense that the judge isn’t leaning your way in some of the preliminary hearings or has a history of reputation of being, let’s say, skeptical or very open to informal marriage claims depending on which side of it you’re defending against. So all those things are certainly worth keeping in mind.
Jake Gilbreath: Right. And it’s a discussion that you need to have with your lawyer. From the very beginning of the case, it should be talked about on both sides, claiming the informal marriage, denying the informal marriage. You need a lawyer that can sit there, and know the judge or judges that you can possibly get, and somebody who’s litigated these before in front of juries.
I think most judges appreciate that there’s a jury option out there. I have one right now that’s going on, and the judge frankly didn’t see it our client’s way 100%. She did a lot of the ways, but not 100% there, which we disagreed with and is actually up on appeal. But she was very frank and said, “Okay. Well, it’s a temporary order. This is how I see it. Now, I know that Jake’s going to make a jury demand.” She was right, and we did. We just felt in that case that the jury’s going to give our client a better shake. Some cases, you think that the judge is going to give you a better shake.
It’s a judgment call at the end of the day. Sometimes it’s out of your hands, right? If the other side makes the demand, then there you go. You’re going to be trying this to a jury. My experience is that for lawyers who don’t try cases to juries, I think a lot of times, they roll their eyes and say, “It’s just roll the dice. This is crazy putting this decision into the hands of 12 citizens,” in whatever county that you live in or six if you’re in county court.
My experience has been that they listen. They try really hard to be fair, and they also try really, really hard to follow the law. Charge is the instructions for the court. They’ll be charged on what an informal marriage is. Anytime I’ve tried any type of property or legal question to a jury, my experience is that they try really, really hard. They don’t just decide what they want to do and just get there. They try really hard to get it right. I think they do a really good job.
Again, it’s just a discussion to have in every single case. Every single case is very different. They’re fascinating cases. They can be emotionally difficult, obviously. You have somebody that totally believes that they were married and they are saying that they believe they were married and then one person that believes they weren’t married or at least saying they believe they weren’t married. That can be kind of surprising litigation, I think, for people to go through, and it can have a huge impact. There’s a resolution to it. There will be an answer, and there’s a way moving forward.
I think that covers broad strokes informal marriage. We could talk about the ones that we’ve done all day long, but I think that gets us kind of a good overview of it. Obviously, there’s more information on our website, and you can contact our office. If you like what you’ve heard today, of course, as always, do us a favor and leave a review. We appreciate all the feedback we get. We really appreciate it when people suggest topics. This topic, for example, came from a webinar that we recently did.
We love feedback. We love reviews. We want to make this podcast interesting for everybody and to cover informative topics for y’all. So if you have any questions, please feel free to reach out to us at email@example.com. I’m Jake Gilbreath. I’m here with Brian Walters, and thank you all for listening.
For information about the topics covered in today’s episode and more, you can visit our website at waltersgilbreath.com. Thanks for tuning in to today’s episode of “For Better, Worse, or Divorce”, where we post new episodes every first and third Wednesday. Do you have a topic you want discussed or a question for our hosts? Email us at firstname.lastname@example.org. Thanks for listening. Until next time.