We are entering the holiday season after a very difficult election season and many people have been been wondering; what does this do to my marriage or intent to be married?
In Texas, not much has changed. The landmark U.S. Supreme Court ruling, Obergefell v. Hodges, 135 S. Ct 2584 (2015), which made marriage equality the law of the land in all 50 states remains. President-elect Donald Trump has even been quoted as saying this is settled law, which would imply there is not going to be an executive push to change this.
So why am I talking about the common law and how does this impact Texas?
The answer to this is 2-fold: (i) All court made laws are referred to as common law, and (ii) Texas allows for informal common law marriages, where it is not required to have a a ceremony or license to be wed. Tex. Family Code 2.401(a)(2).
Texas has recognized in several circumstances that the traditional common law marriage requirements in the state do apply to same sex couples. Please read very carefully if you and your partner are: (i) living together, (ii) intend to be married, and (iii) are holding yourselves out to others as a married couple. You could be married! Texas does not have a minimum time requirement in which you have to be living together as other states that have common law marriage do.
So why do I say read this carefully?
There are many benefits to marriage, including: tax effects that may lower your burdens from the IRS, visitation rights if one person is in the hospital, presumptions related to end of life decisions, and revised property divisions without a will at the time of death of one of the spouses. There are some formalities that may be required as well to make this informal marriage more formal such as declarations of informal marriage that is filed with the County Clerk. This alone though does not replace sound planning with the help of a licensed attorney.
Another important consideration is that the only way out of a marriage is by divorce. A claim for divorce from an informal common law marriage can occur up to 2 years after a married couple have ceased living together, before a rebuttable presumption exists that the marriage was not entered into. Tex. Family Code 2.401(b). Divorces can be very complicated when it becomes necessary to divide the common property. Texas is a common property state as well, which means items purchased during a marriage most-likely belong to the community. This property can include cars, homes, certain types of jewelry, art, and even extend to portions of defined benefit plans and retirement funds. If you ever find yourself in this scenario it is essential to seek counsel from a qualified and licensed attorney.
As always, this blog is built from the insight and questions that I receive so please keep them coming!
Steven Riddiough is an Attorney licensed in Texas and the Managing Member of Steven Riddiough, PLLC a Dallas, TX law firm dedicated to serving the needs of everyone, including the LGBT community. This blog is intended to provide general information and nothing in this blog is intended to be treated as legal advice as the unique circumstances of every case may result in dramatically different outcomes.