Texas Jury Finds Same-Sex Couple Was Not Informally Married

iStock-170042608-300x200Texas is among the states that still recognize informal marriage, sometimes called “common-law marriage.” A couple may establish an informal marriage by signing a document entitled “declaration of informal marriage.”  In the absence of a declaration, a party may also prove the existence of a Texas informal marriage through evidence that the couple agreed to be married, subsequently lived together as spouses in Texas, and represented to others that they were married.  Tex. Fam. Code § 2.401.  Although informal marriages are generally treated the same as formal marriages, the existence of an informal marriage can be far more difficult to prove.

Man Files for Divorce from Partner – No Marriage Found to Exist

A man, E.L., recently challenged a jury’s finding that he and his long-term same-sex partner, J.M., were not in an informal marriage. The parties started dating in 1997 and lived together from June 1998 until January 2017.  They were not formally married, and there was no evidence they had ever filed a declaration of informal marriage.  E.L. filed a lawsuit seeking a divorce from J.M.  The jury found the parties were not married.  E.L. appealed, arguing there was insufficient evidence supporting that finding and that the evidence conclusively proved the parties were married.

The jury was asked to determine if the parties were married.

Conflicting Evidence Found in the Record

E.L. pointed to several pieces of evidence supporting an agreement between the parties to be married.  Two notarized domestic-partnership affidavits stated the parties had lived together in a “spouse-like relationship.”  Letters from J.M. stated his hopes for their future together and referred to the two of them as “Husbears.” They had lived together for about 19 years. J.M. had bought a ring for E.L. Additionally, J.M. gave E.L. stocks in his company, created a trust with E.L as trustee and beneficiary, named E.L. executor of his will, appointed E.L. his medical power of attorney and durable power of attorney, and designated him the guardian of his person and estate if a guardian was needed.

The appeals court found the evidence of informal marriage was not conclusive.  Additionally it conflicted with other evidence. J.M. testified the parties were not married and he did not consider E.L. to be his husband.  J.M. also testified that E.L. had repeatedly suggested marriage, but that he had been clear he would never marry E.L. Additionally, both parties listed themselves as single on their tax returns.

Appeals Court Upholds Jury’s Findings

The appeals court found there was conflicting evidence and noted that it is generally the factfinder’s responsibility to resolve conflicting evidence.  When a party appeals based on factual sufficiency, the appeals court will only set aside the verdict “contrary to the overwhelming weight and preponderance of the evidence. . .” Cain v. Bain. The appeals court found factually sufficient evidence supporting the finding. Because there was sufficient evidence supporting the finding as to the first element, the appeals court did not need to address the other informal marriage elements.

The appeals court similarly rejected E.L.’s argument that there was conclusive evidence supporting each of the informal marriage evidence.

The appeals court affirmed the trial court’s decree.

Informal Marriages Can Require Extensive Proof – Call McClure Law Group to Help Protect Your Rights

Because same-sex couples were unable to legally marry for so long, many long-term couples may have complex circumstances with regard to informal marriages. If you anticipate separating from a long-term partner, an experienced Texas divorce attorney can advise you on your rights, including informal marriage and the potential need for a divorce.  Call McClure Law Group at 214.692.8200 to set up a consultation.


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