Rio Grande City, TX asked in Civil Litigation, Small Claims, Divorce and Family Law for Texas

Q: Common law yes or no?

I bought half an acre while married to an ex and in a relationship with my new girl.

i then divorced my ex 3 yrs later.the lot is only under my name.while being in a the relationship with my new girl i started building a house with only my money and money my dad gave to me.10 yrs later we split up while the house was unfinished and shortly after we split up i finished the house and moved in and claimed homestead weve been seperated for 2 yrs,4 kids together,now my ex wants to file for common law divorce and get half of the house value.We never did any income taxes together,no joint bank accounts,no bills under my name where we rented.i paid child support to her even though we lived together.i told her i wanted to get married one day but it never happened and she never agreed to it anyways.i have text messages from her saying she doesnt want to live in that house or anything to do with it.she never helped pay taxes even when i asked her because it was going to foreclosure.what do i do?

3 Lawyer Answers
Melissa O'Neal
Melissa O'Neal pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Angleton, TX
  • Licensed in Texas

A: This question is not specific enough for a yes or no answer but I would offer that you could not have been married to the girlfriend while still married to the ex wife. (I would be interested to know if you received the property in your divorce from her?) So even if a court found common law marriage the inception of title to the property would have been before the marriage and she would have no right to the property other than any reimbursement claim from money she may have invested.

Elisa  Reiter
Elisa Reiter
  • Dallas, TX
  • Licensed in Texas

A: Under the Texas Family Code, an informal or “common law” marriage may be proved with evidence that:

a declaration of marriage has been signed; or the parties:

agreed to be married, and

after the agreement they cohabitated (lived) together, in Texas, as a married couple, and

represented themselves to others, in Texas, to be married.

All three requirements must occur at the same time, although there is no minimum duration.

Additionally, both members of a couple must be at least 18 years old, must not be related to each other by consanguinity (as defined in Texas Family Code 6.201), and must be legally single. If either party is married to someone else, a new informal marriage does not start until the prior marriage is dissolved, regardless of the couple’s intent and behavior.

Unclear when you divorced and the overlap of the new relationship. Retain counsel. Don't try to represent yourself. Good luck.

Sharita Blacknall
Sharita Blacknall
  • Plano, TX
  • Licensed in Texas

A: Alright, considering what you've shared and the nuances of the Texas Family Code, here's some general information:

Legally Married vs. Common-Law: If you were legally married to your ex when you began your relationship with your new girlfriend, then you couldn't have established a common-law marriage with the girlfriend during that time. In Texas, you cannot be legally married to one person and simultaneously have a common-law marriage with another. Bigamy, which includes having two marriages simultaneously, is illegal in Texas.

Establishing a Common-Law Marriage: For Texas to recognize a common-law marriage, you both must have agreed to be married, lived together in Texas as a couple, and presented yourselves to others as married. Since you've said that while you mentioned wanting to marry one day, she never agreed, this could be a key point in arguing against the existence of a common-law marriage.

Property Concerns: Generally, property acquired during a marriage is seen as jointly owned by both partners. However, property you had before the marriage or property you received as a gift (like the money from your dad) is considered yours alone. Given that you bought the land before your relationship with her began and that the house was built primarily with your resources and gifts, this could support your claim that it's your separate property.

Your Children and Child Support: The best interests of the children are always the primary concern in any legal proceedings. The fact that you paid child support, even while living together, might be seen as an indication that you didn't consider yourselves as married. This could be another point in your favor.

Evidence Matters: The fact that you have texts from her where she expressed no interest in the house could be valuable evidence. The court will consider statements from both of you to determine the nature of your relationship and any agreements or understandings you had.

Act Quickly: If she believes there was a common-law marriage and wants to prove it, she would typically have two years after you both separated to initiate this claim. After this period, it's generally presumed that there was no agreement to be married.

This is a general overview and should not be considered as legal advice. Given the complexities of your situation, I strongly recommend speaking with a family attorney in Texas. They can provide advice tailored to your circumstances and help you navigate the legal landscape.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.