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Submitted by DakotaLegal on
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Submitted by DakotaLegal on
Probably, you never really were “man and wife” under common law. You asked, for example, whether the “contract” you two signed was “void.” In fact, it doesn’t even appear that you had what the law thinks of as a contract, to begin with. There are some things that the law doesn’t believe you can draw a contact for, let alone sue someone to enforce. When it comes to marriage, that’s why we have so many publicly formal steps in making it enforceable.
Having said that, though, Texas is one of the places in America where you can declare a common law marriage and have it enforced. So let’s look at what it means to be common law, man and wife. Each state is different, and we’re only going to think about Texas in this question.
Can you “contract” to be common law man and wife?
Yes, you can. I’m going to put a link here, http://people.rice.edu/uploaded Files/People/Forms_and_Templates/Affidavit-CommonLawMarriage.pdf, so that you can compare a valid Texas Common Law marriage form with what you signed. The form you signed has to have pretty much the same language and shape, or else you can attack it as an invalid agreement on that basis alone.
Usually, though, to have a marriage recognized as “valid” means you have to do more than just claim to be married. In Texas, there are three tests for a Common Law marriage:
(1) The parties agree to be married;
(2) After making the agreement, the parties live together (and in Texas) as husband and wife; and
(3) They represent to others that they are married.
Based on what you’ve said, the second part of the test simply does not apply here. You specifically decided before being released that you did not want to be married. That is why, in this case, (a) where you did not live together, and (b) there do not seem to be other factors indicating a marriage…only that notarized paper. Texas courts want to see more than that to prove a marriage. http://statecasefiles.justia.com/documents/texas/ninth-court-of-appeals/09-10-00263-cv.pdf?ts=1323970337.
Common Misunderstandings About Common Law Marriage
Just saying “we’re married” does not make a marriage. For that matter, just living together and occasionally saying “my husband” or “my wife” does not do it, either. There must be other “legal” indicators. Filing taxes together, signing registries or bills as husband and wife, paying bills, sharing a name, having a child together. All of these are what a court will look at.
Another common misconception is that the way out of a common law marriage is a common law divorce: there’s no such thing as a common law divorce. This is the one area that concerns me a bit about your situation….what was your relationship before the agreement in jail?
How Do These Rules Apply To You?
From what you said, you seemed to have had a relationship before going to jail. That’s not entirely clear, though. This is what could be called the “gray area” of your question. If, while in the setting of a jail, you made an agreement and had no prior commitment or co-habiting relationship, you have little reason to expect to have that agreement enforced.
Since you do not want to have the Common Law agreement upheld, you should get the help of a legal expert near you. Try here: http://www.lonestarlegal.org/.They can go over the facts with you, as we’ve talked about here. Then you can make a decision about whether you may actually need to go into court and get a divorce.
Probably, you never really were “man and wife” under common law. You asked, for example, whether the “contract” you two signed was “void.” In fact, it doesn’t even appear that you had what the law thinks of as a contract, to begin with. There are some things that the law doesn’t believe you can draw a contact for, let alone sue someone to enforce. When it comes to marriage, that’s why we have so many publicly formal steps in making it enforceable.
Having said that, though, Texas is one of the places in America where you can declare a common law marriage and have it enforced. So let’s look at what it means to be common law, man and wife. Each state is different, and we’re only going to think about Texas in this question.
Can you “contract” to be common law man and wife?
Yes, you can. I’m going to put a link here, http://people.rice.edu/uploaded Files/People/Forms_and_Templates/Affidavit-CommonLawMarriage.pdf, so that you can compare a valid Texas Common Law marriage form with what you signed. The form you signed has to have pretty much the same language and shape, or else you can attack it as an invalid agreement on that basis alone.
Usually, though, to have a marriage recognized as “valid” means you have to do more than just claim to be married. In Texas, there are three tests for a Common Law marriage:
(1) The parties agree to be married;
(2) After making the agreement, the parties live together (and in Texas) as husband and wife; and
(3) They represent to others that they are married.
Based on what you’ve said, the second part of the test simply does not apply here. You specifically decided before being released that you did not want to be married. That is why, in this case, (a) where you did not live together, and (b) there do not seem to be other factors indicating a marriage…only that notarized paper. Texas courts want to see more than that to prove a marriage. http://statecasefiles.justia.com/documents/texas/ninth-court-of-appeals/09-10-00263-cv.pdf?ts=1323970337.
Common Misunderstandings About Common Law Marriage
Just saying “we’re married” does not make a marriage. For that matter, just living together and occasionally saying “my husband” or “my wife” does not do it, either. There must be other “legal” indicators. Filing taxes together, signing registries or bills as husband and wife, paying bills, sharing a name, having a child together. All of these are what a court will look at.
Another common misconception is that the way out of a common law marriage is a common law divorce: there’s no such thing as a common law divorce. This is the one area that concerns me a bit about your situation….what was your relationship before the agreement in jail?
How Do These Rules Apply To You?
From what you said, you seemed to have had a relationship before going to jail. That’s not entirely clear, though. This is what could be called the “gray area” of your question. If, while in the setting of a jail, you made an agreement and had no prior commitment or co-habiting relationship, you have little reason to expect to have that agreement enforced.
Since you do not want to have the Common Law agreement upheld, you should get the help of a legal expert near you. Try here: http://www.lonestarlegal.org/.They can go over the facts with you, as we’ve talked about here. Then you can make a decision about whether you may actually need to go into court and get a divorce.