Texas Divorce Attorney Blog
Generally, the date of a marriage is certain, but that is often not the case with an informal marriage. The date of marriage affects the characterization of property and therefore a dispute over the date of marriage can significantly impact the property division. A former husband recently appealed a divorce decree, arguing in part that the trial court erred in finding the parties were married on or about January 1, 2012, which was before their ceremonial wedding.
According to the appeals court, the parties had a ceremonial wedding in January 2013. The husband petitioned for divorce in late 2020, alleging they had “married on or about January 31, 2013.” In the wife’s counterpetition, she alleged they “married on or about January 1, 2012.”
The trial focused on the marital residence, some property in Mexico, and the husband’s trucking company.
In the opening statement, the husband’s attorney stated the evidence would show the husband bought the residence before the marriage, but he was only asking for “his fair share of the net equity. . .” and not requesting possession.
The wife’s attorney stated he did not think there was a dispute the home was community property because the deed stated it “deed[ed] property to the husband and wife.” They disputed that the property in Mexico and the trucking business were the husband’s separate property. He stated the parties had an informal marriage since at least 2012. The husband’s attorney objected, arguing the wife had not requested adjudication of a common law marriage in her pleadings.
The husband testified they got married January 31, 2013. He testified he had purchased the home through an owner-to-owner financing agreement and started making payments in February 2011. He said the wife moved in April or May 2011, but they were not yet married. He paid the house off in approximately September 2017.
He testified the deed had both parties’ names on it, but he could not remember when the wife was added. He said she moved in when they changed the deed. According to the deed, it was executed on August 3, 2012. The deed stated the grantors conveyed the property to the husband “and wife.”
The husband’s attorney stated she did not see a request to adjudicate an informal marriage in the wife’s pleadings, but the wife’s attorney argued the wife was not required to specifically plead for adjudication of informal marriage when she had alleged the marriage began on January 1, 2012. The wife’s attorney argued the husband should have raised any complaint regarding the specificity of the pleading before trial. The trial court ruled the wife did not have to specifically plead for adjudication of an informal marriage.
The husband testified he started his trucking business in 2009 or 2010. He bought the truck he was currently using for the business during the marriage, but had funded that purchase by selling a truck he owned before the marriage. He asked the court to determine the trucking business was his separate property.
The property in Mexico was bought in 2016 or 2017 in the wife’s name. The wife purportedly transferred her interest in the property to the husband. According to the husband, the parties had an agreement the property in Mexico would become his separate property, but he did not have evidence of a signed agreement to convert the property.
The wife testified she lived in the home since March 2011. She said the parties had been married since 2012 when they “really started claiming marriage” and held each other out as spouses. She testified they filed taxes as “married filing jointly” in 2012, but the husband objected to admission of the tax return.
The court granted the divorce. The court awarded the husband 100% of his business and the property in Mexico, but awarded the wife 100% of the marital residence.
The wife filed a proposed divorce decree stating January 1, 2012 as the date of the marriage. The husband objected and sought clarification of the court’s rendition. He also objected that the wife’s proposed decree included an adjudication of an informal marriage, for which she had not pled. He also argued evidence did not establish the elements of an informal marriage.
In the final decree, the court found the parties got married “on or about January 1, 2012.” The court awarded to the husband the property in Mexico, his trucking business, and certain other property. The court awarded to the wife the marital residence and certain other property.
The Husband’s Appeal
The husband appealed. He argued the court granted relief for which the wife did not plead and that she had not presented evidence establishing the elements of informal marriage.
Divorce Decree Conformed to Pleadings
The appeals court did not find authority supporting a requirement for a party to specifically plead an alleged marriage was an informal marriage. The wife had pleaded that the parties were married “on or about January 1, 2012,” and the court found they were married on that day. The appeals court concluded the decree conformed to the pleadings.
Informal Marriage
To prove informal marriage in Texas, a party must show that there was an agreement to be married, that the parties lived together as spouses in Texas, and they represented that they were married to others. Tex. Fam. Code § 2.401(a)(2).
Both parties agreed they started living together in 2011. The husband testified started paying on the home in February 2011. He testified the wife moved in around April or May, before they were married. The wife testified she moved into the house in March 2011.
The appeals court noted the only testimony in the record relevant to the elements of informal marriage was the husband’s response “Yes” when asked if he would hold the wife out to be his wife in 2012.
The appeals court pointed out that an informal marriage only exists upon the concurrence of all three elements. There was not any evidence in the record that they had an agreement to be married or represented themselves as married by the January 1, 2012. The wife testified they started “claiming marriage” “[s]ince 2012” and that they held each other out as married before they got the marriage certificate in January 2013. The husband testified the wife was listed as his wife on the deed executed in August 2012 and that he would hold her out as his wife “in 2012.”
The appeals court determined that the testimony did not establish all three elements in concurrence on January 1, 2012. The appeals court concluded there was not sufficient evidence to support the court’s finding the parties were married “on or about January 1, 2012.”
The appeals court affirmed the parts of the decree dissolving the marriage and addressing the children, but reversed the part that found the parties were married “on or about January 1, 2012” and remanded the property division.
Seek Legal Advice
An adjudication of informal marriage prior to a ceremonial marriage can have severe financial consequences for a spouse who has a high net worth, who acquired significant assets, or who started a business during the period after the date of the informal marriage but before the ceremonial marriage. If you believe informal marriage may be an issue in your divorce, a knowledgeable Texas divorce lawyer can advise you and help you protect your assets. Call 214.692.8200 to schedule a consultation with McClure Law Group.