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commonlaw in texas


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#1 sunshine87

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Posted 03 January 2013 - 04:30 PM

how long do you have to live with someone to be considered commonlaw..our friends and family all regarded us as married..we called each other husband and wife when introducing each other to other people..He is passed away in October of this year..a lawyer told me I had to go before a jury to hear the case to declare a commonlaw marriage is this true

#2 Ted_from_Texas

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Posted 03 January 2013 - 09:40 PM

There is no set time. If you and your husband intended and agreed to be married, and lived together as a married couple, and held yourselves out to the community as husband and wife, you have a valid common-law marriage (we call it an "informal" marriage) in Texas. The only problem is, if anyone disputes your marital status you must prove, using documentation and/or witness testimony, that the above components of a valid marriage existed before your husband passed away. That's the purpose of the hearing or trial your attorney told you about.

Some examples of evidence the court would find convincing are legal documents (mortgage, lease, credit card agreements) wherein you are referred to as "Mr. and Mrs. So-and-so"; friends and family members who can honestly say they believed you to be married; mail addressed to you as "Mr. and Mrs." and income tax returns indicating "married filing jointly." If you can gather up the evidence and present it to the person or organization that's disputing your marital status, they might drop their objection, saving you from having to go to court. Consult local counsel.

#3 sunshine87

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Posted 04 January 2013 - 03:09 AM

We never filed tax returns or had anything with our names together, we called each other husband and wife and friends and family regarded us as married..no one is disputing it at this time..His parents and siblings are backing me 100% on this matter..I was just curious as to why there has to be a jury to hear this matter if noone is contesting it..we all thought all I had to do was apply for a Declaration of Informal Marriage and have it heard before a judge not in front of a jury..We were going to get married in december but the cancer spread faster than what we had hoped

#4 harrylime

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Posted 04 January 2013 - 06:01 AM

a lawyer told me I had to go before a jury to hear the case to declare a commonlaw marriage is this true


Is this your attorney? Is this an action that is taking place in a probate case?

I don't know Texas procedure, but it does seem odd that this would occur before a jury.


we all thought all I had to do was apply for a Declaration of Informal Marriage and have it heard before a judge not in front of a jury..


I don't know that a Declaration can be done when one of the parties to the presumed informal marriage has passed away.

#5 pg1067

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Posted 04 January 2013 - 07:24 AM

In any future posts, please make an effort to use something that resembles proper capitalization and punctuation. Doing so will make it easier for others to read and understand what you write.


how long do you have to live with someone to be considered commonlaw.


This question rests on the erroneous premise that forming a common law marriage requires that the parties live together for a particular period of time. No such requirement exists.


our friends and family all regarded us as married..we called each other husband and wife when introducing each other to other people..He is passed away in October of this year..a lawyer told me I had to go before a jury to hear the case to declare a commonlaw marriage is this true


"A lawyer"? Whose lawyer? If you suspected that this lawyer was providing you with incorrect information, why wouldn't you discuss your concerns with him or her? We certainly have no way of knowing whether it's true or not because you've provided us with no background facts or context. Also, I assume you meant to say that he died in October 2012 since "October of this year" is still nine months in the future.


We never filed tax returns or had anything with our names together, we called each other husband and wife and friends and family regarded us as married..no one is disputing it at this time.


If no one is disputing that you were married, then I can't conceive of any reason why you'd need to prove the marriage in court. However, if you did not file your federal income tax returns using the "married filing jointly" or "married filing separate" status -- which would compel the conclusion that you filed as "single" (or possibly "head of household") -- that is compelling evidence that contradicts your present claim that you were married.


I was just curious as to why there has to be a jury to hear this matter if noone is contesting it.


What matter? And, again, why don't you ask the lawyer who told you that you have to do this why he/she thinks you have to do it since no one is contesting the existence of the marriage?


We were going to get married in december but the cancer spread faster than what we had hoped


This is yet another bit of evidence that contradicts your claim that you were married. If, in fact, you had a common law/informal marriage, there would be no need to "get married."

It would be quite helpful to know the issue you're dealing with.

#6 Guest_FindLaw_Amir_*

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Posted 04 January 2013 - 08:35 AM

You may want to read the Texas Family Code: Section 2.401 Proof of Informal Marriage as a good resource to learn more about this subject matter.

#7 Ted_from_Texas

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Posted 04 January 2013 - 08:43 AM

"We were going to get married in december but ..."


This is very confusing. If you were already married at common law, there'd be no need to marry again, so this contradicts your claim to a valid informal marriage. Note that one of the components of such a marriage in Texas is to agree that you are married. See the second sentence of my earlier response.

Since your spouse (?) has already passed away, it's too late to file a declaration of informal marriage.

If no one is disputing your marriage, why the need to prove it up in court, either with or without a jury?

#8 sunshine87

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Posted 04 January 2013 - 04:31 PM

Sorry if I'm confusing you, this is very confusing to me at this time.We did not file a paper for declaration with the court, I had no idea that we were supposed to file one which is where the problem lies..He left me the beneficiary of a federal savings account and they want a court order in order to release the money to me. He also left me the beneficiary of his estate but the notary messed up when she notarized his will which makes the will invalid. That is why I have to go to court to have our marriage declard legal.

#9 Ted_from_Texas

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Posted 04 January 2013 - 07:23 PM

It's not mandatory in Texas that you file a Declaration of Informal Marriage, but by doing so you short-cut the process of proving up your marital status. The declaration itself is sufficient proof. However, you cannot marry a deceased person, so if you didn't file the declaration while he was alive, it's too late now. You're stuck with having to prove up your marriage the old-fashioned way. I'm sorry.

Your assertion that "no one" is disputing your marriage seems somewhat disingenuous. If the bank is refusing to release funds to you without a court order validating your marriage, they are, by definition, disputing your marital status.

Ditto concerning your husband's will. Validating your marriage will not validate the will. If the will is invalid, his estate will be distributed in accordance with Texas' laws of intestate succession whether he was married to you or not. Absent any objection, the estate's administrator has the authority to treat you as his wife for the purpose of distributing the assets. If s/he is refusing to do so, s/he is, by definition, disputing your marital status. Since a single person's parent, child or sibling is most likely to be appointed the estate's administrator, this would bring into question your statement that "His parents and siblings are backing me 100% on this matter." On the contrary, if they were "100%" behind you, they'd step aside so you, as the decedent's spouse, could be appointed administrator yourself.

Since your understanding of the law appears to be vague at best, I really think you need to sit down and discuss your options with a local probate/trust attorney. Good luck!

#10 harrylime

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Posted 04 January 2013 - 09:15 PM

He also left me the beneficiary of his estate but the notary messed up when she notarized his will which makes the will invalid.


Since there is no requirement that a will be notarized, it's unclear why a mistake by a notary would invalidate the will. Are the witnesses to the will not available to testify that they witnessed your husband signing the will? (I believe Texas allows the witnesses to provide affidavits to that effect in place of in-person testimony, but I am not certain.)

#11 pg1067

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Posted 05 January 2013 - 06:29 PM

I concur with the points made in the most recent responses by "Ted_from_Texas" and "harrylime." The things you're saying are happening don't make sense. If you're the designated beneficiary on a bank account, it doesn't matter if you were or weren't married, and notarization isn't required for a will to be valid. You need to speak with a local attorney to help you sort things out.




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