When a person seeks divorce from an informal marriage, they often must prove the informal marriage existed. To prove a Texas informal marriage, the party must show by the preponderance of the evidence that the couple agreed to be married, subsequently lived together in Texas as spouses, and held themselves out to others as married. Tex. Fam. Code § 2.401. A man recently appealed summary judgment in his divorce case on the ground he had not raised an issue of fact as to the existence of an informal marriage.
The petitioner filed for divorce in November 2021, alleging the parties had been married on or about March 18, 2002.
In her answer, the respondent asserted a verified defense that they parties were not married. She filed a motion for summary judgment, attaching tax returns, deeds, and other exhibits that she argued showed the parties had not represented themselves as married “to the general public or others.” She also averred that the petitioner had never presented her as his wife to his children, that his children had not socialized with her or her family because they knew she was not the petitioner’s wife, and that he lived with another woman.
The petitioner attached an affidavit to his response and argued it established genuine issues of material fact as to all required elements of an informal marriage.
At the summary judgment hearing, the respondent’s attorney argued the motion was actually a no-evidence motion. The petitioner did not object and argued that he had met the burden of raising a fact issue.
The trial court granted the motion for summary judgment. The petitioner appealed, arguing the motion was a traditional motion for summary judgment and not a no-evidence motion.
No-Evidence or Traditional Summary Judgment Motion
A no-evidence motion must specifically challenge the support for the claim and set forth the elements for which there is not evidence. If a no-evidence motion generally challenges the case rather than specifically challenging the support for an identified element or elements, it cannot support summary judgment. The respondent’s motion identified the three elements required to prove an informal marriage but did not identify those for which there was no evidence. The appeals court therefore concluded the motion was defective and legally insufficient to support no-evidence summary judgment. Additionally, the motion was not labeled as a no-evidence motion and otherwise indicate it was a no-evidence motion. Additionally, the respondent had attached summary judgment evidence to the motion. The petitioner had not received sufficient notice that the respondent was seeking no-evidence summary judgment. The appeals court therefore applied the standard of review for traditional summary judgment.
Holding Out to Others a Married Couple
The petitioner argued he had raised a fact issue for each element required to prove an informal marriage.
The respondent argued her exhibits showed that the parties did not represent themselves as married to the general public. She had attached both parties’ tax returns showing they each filed as single. She also attached two warranty deeds that had identified the petitioner as “single.” She also attached a bank statement indicating the petitioner had a joint bank account with another woman. She also averred that the petitioner had never represented her as his wife to his children.
The appeals court concluded that the summary judgment evidence showed the parties “had not consistently conducted themselves as husband and wife in the public eye. . .” and therefore negated the third element. The burden then shifted to the petitioner to present controverting evidence to raise a fact issue with regard to the third element.
The petitioner offered only an affidavit as summary judgment evidence. In it, he averred the parties had told others, including his sister and his daughter, that they were married. The appeals court concluded, however, that the petitioner’s statement only showed isolated references to other people that they were married. Texas case law has held that isolated references are not sufficient evidence that the parties held themselves out as a married couple. The appeals court concluded that the petitioner had not presented sufficient evidence to raise a genuine issue of fact. The trial court therefore did not err in granting summary judgment. The appeals court affirmed the judgment.
Seek the Advice of a Skilled Dallas Family Law Attorney
The existence of an informal marriage can have significant financial consequences at the end of the relationship. If you believe your relationship may constitute an informal marriage, an experienced Texas divorce attorney can advise you. Contact McClure Law Group at 214.692.8200 to discuss your case.