Rules of common law unions can be confusing, lawyers say

Jeff Prince
The Fort Worth Star-Telegram, © 2000

DALLAS - Emmitt Smith, by his own account, has been a bachelor during his tenure with the Cowboys. But a former girlfriend has taken him to court to prove that she and the All-Pro running back are man and wife, based on the rarely used but centuries-old common law.

Tackling this one may be tougher than tackling Smith on the football field.

Texas is one of only a dozen states that still recognize common law marriages, and proving that the union carries the same legal weight as formal matrimony is difficult, experts said.

There is a murky line between a common law marriage and a non- marriage relationship, even when the relationship has lasted for many years and involves children and cohabitation. More often than not, trials determine that one person was guilty of wishful thinking, experts said.

"More of them I've found were not married than those who were," said Dallas County District Court Judge Dee Miller, who handles family law cases.

Although common law marriages have the same legal standing as formal marriages, interpretation of the law by judges and juries can muddy the waters. Merely living together does not a marriage make.

"A lot of laymen think that if you live together and have a sexual relationship, that is enough," said Keith Nelson, a Dallas lawyer who has practiced family law for 17 years.

"There are some myths that if you just go to a hotel room and check in as Mr. and Mrs., you are common law married; that is not true," said Nelson, who presented a report on common law marriages at an annual seminar for family lawyers in 1997.

Legal documents, such as tax forms, are often the deciding factor.

Texas law lists three elements to consider when determining whether a couple is legally married by common law. There must be an agreement between the couple that they are married. They must live together as husband and wife. And they must hold themselves out to others to be married.

The third element is the hardest to prove and generally boils down to what the couple lists on legal documents, Miller said.

"I think it is significant what they say to the IRS, the landlord or to the school for registration purposes," she said. "A lot of times they will file as single to the IRS. Bills may not be in both names. It's evidence, not conclusive, but do they have joint accounts or separate accounts? Are they buying a house as a married couple or single?"

A tax form often carries the most clout. When someone files a tax form as single or married, "it doesn't get much stronger than that," Nelson said.

Common law marriage, often referred to as informal marriage under Texas law, is a holdover from times when men and women were often considered married by their actions rather than by formal ceremony.

Through the years, as formal ceremonies became more prevalent and more couples began to live together out of wedlock, states began abolishing common law marriages.

Some cases, such as Smith's, generate considerable publicity. More often, these rare disputes are settled out of court without fanfare.

"To actually go to trial on one is a somewhat rare occurrence," Nelson said. "You won't find someone who specializes in it."

Texas courts have historically hesitated to invalidate a formal marriage but are less prone to uphold claims of informal marriage, Nelson said.

The Texas Supreme Court said common law marriages have been recognized in Texas since 1847. Currently, 12 states, including Texas, and the District of Columbia continue to recognize common law marriages.

Most have similar laws, which generally state that an informal marriage is established if elements of a marriage are present and only a license and public ceremony are absent.

Despite its decline in popularity in other states, pressure to abolish informal marriages has been thwarted in the past several decades by the Texas Legislature.

In 1995, however, the Texas Legislature determined that claims of common law marriage must be brought forth within two years of the date that the couple separated.

Smith appeared with a former girlfriend, Hope Wilson, before a family law judge Wednesday to discuss child visitation rights. The couple has a 1-year-old daughter, Regan. Wilson asked for a jury trial to determine whether the two are married. A trial date has not been set.

Wilson told the judge that she was legally married to Smith. Under Texas law, Wilson might be entitled to a fair portion - half, sometimes less, sometimes more - of Smith's assets if a court determines they are common law married.

Whether a couple has children rarely affects a court's decision, Miller said.

"I wish it did, but it doesn't mean anything in this day and time," she said.

Miller recalled a woman who lived with a man, wore an engagement ring for 12 years and told people that they were married. But she was never given a wedding ring.

"She said, 'I kept trying to make him set a date.' That was an indication to me that she knew she was only engaged," Miller said. "It didn't matter how many people she told she was married. It was very clear to me that she knew they needed to get married in the church."

Another lawyer recalled that a professional athlete was once determined to be common law married because he had previously introduced his girlfriend as his wife at a news conference recorded by reporters.

Evidence that someone characterized a relationship as a marriage can sway a court's decision. Simply living together will not.

"There are people who live together for a decade who are not married," said Ike Vanden Eykel, a Dallas family law lawyer. "They never agreed to be. You have more and more people just agreeing to live together."

Claims of common law marriage usually involve property and often arise when a person is seeking to negotiate a settlement, Vanden Eykel said. In 20 years as a lawyer, Vanden Eykel has represented clients in about 35 trials to determine common law marriage, he said. He has represented men and women, those seeking common law status and those denying it.

"I've had every aspect of it," he said. "The common thread typically is that you've got one person with money and one person without money, and the person without money wants money."

How common law defines marriage

Texas law lists three elements to consider when determining whether a couple is married under common law.

• There must be an agreement between the couple that they are married.
• They must live together as husband and wife.
• They must hold themselves out to others to be married (such as on tax forms).

Jeff Prince, (972) 263-4448 jprince@star-telegram.com