Common-Law Marriage to Same Person After Divorce

Is it possible to be common-law married to the same person after a divorce? Of course it is: To establish a common-law marriage (under Texas law, an "informal marriage"), a person must prove:

  • an agreement to be married;
  • that the the couple is living together as husband and wife; and
  • that they are representing to others that they are married.

Tex. Fam. Code § 2.401(a)(2). These three elements of a common-law marriage can be proved even after a prior divorce.

In Garcia v. Garcia, the parties divorced in 1989 but resumed living together in 1990. In 2009, the wife sued the husband for divorce. The husband claimed that the parties were divorced and had not remarried.

But the trial court, and then the Court of Appeals, concluded that the parties were married. As evidence of common-law marriage, the Court of Appeals cited the following, all of which occurred in 1990 or afterward:

  • The husband admitted that he and the wife "slept together in the same room and were living together as husband and wife."
  • The couple filed joint tax returns.
  • The couple signed mineral leases as husband and wife.
  • The husband told the wife's grandchildren that the couple did not need to be married in the church because they were already married.
  • The husband assisted the wife in adopting and raising her grandchildren.
  • The parties were registered as a family at their church.
  • The parties were listed as husband and wife at the children's school.
  • The parties maintained a joint checking account to which both parties had full access.
  • The parties both deposited and withdrew funds from the account.
  • The parties received a tax refund which was issued to them as husband and wife and was deposited in the joint checking account.

The trial court found the parties to be married and divided their community property.

Kudos to the wife's lawyer in digging out all this evidence.

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