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Informal Marriage in Texas

In the state of Texas, a common law marriage, also known as an informal marriage, is a valid and legal way for a couple to marry. Section 2.401 of the Texas Family Code provides that an informal marriage may be proved by evidence that the couple: “(1) agreed to be married; and (2) after the agreement they lived together in this state as husband and wife and there (3) represented to others that they were married”. TEX. FAM. CODE ANN § 2.401(a)(2).

The existence of an informal marriage is a fact question, and the party seeking to establish existence of the marriage bears the burden of proving the three elements by a preponderance of the evidence. Weaver v. State, 855 S.W.2d 116, 120 (Tex.App.-Houston [14th Dist.] 1993, no pet.). An informal marriage does not exist until the concurrence of all three elements. Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex.App.-Houston [1st Dist.] 1991, writ denied)).

In the present case, I go over the Court of Appeals for the Fifth District of Texas at Dallas decision to affirm the trial court’s order declaring Defranco and Fuller were never married to one another. In the decision, the Court rejects Fuller’s argument that the parties had mutual intent to be married.

DeFranco v. Fuller

DeFranco sought a declaratory judgment that there was no marriage between himself and Fuller. Fuller filed a petition for divorce alleging the parties had an informal marriage that began on August 1, 2014. At the conclusion of trial, the trial court declared

Fuller moved into DeFranco’s home in 2014 and lived in the house until they ended the relationship in 2016. Upon reconciling, Fuller moved back into DeFranco’s home later that year and continued living there until February 2018.

Here, several facts point to the fact that DeFranco and Fuller were never married to one another.

Both parties testified that they did not complete a declaration of informal marriage with the county clerk’s office and dispute whether or not the August 1, 2014 date is of significance to their relationship; they never wore engagement rings and neither party adopted their partner’s last name. Additionally, neither party filed married tax return for the years they were together, as well as text message communications demonstrated their non-marital relationship. Specifically, addressing each other as “boyfriend/girlfriend” and plans to be “public official” once they celebrate a marriage ceremony.

DeFranco maintained he and Fuller were strictly boyfriend/girlfriend.

Throughout the trial, the DeFranco maintained he and Fuller were boyfriend and girlfriend and strictly “married on paper”. At trial, he testified he added Fuller to his travel benefits as a “registered companion” as he is a pilot for American Airlines. This status was then changed to domestic partner so Fuller’s children could benefit from his travel benefits. American Airlines prepared an affidavit stating both had the intention of entering into a legal marriage. DeFranco solely stated that he signed the affidavit to benefit Fuller; no to establish a marital relationship with Fuller.

Court of Appeals affirms the trial court’s decision: Ordering DeFranco and Fuller were never married.

The Court of Appeals affirmed the trial court’s decision given the considerable evidence opposing an informal marriage finding. The record contains several text messages between both parties that show they never considered themselves spouses. The Court of Appelas also gave great weight to the date of the messages as Fuller argued they were married between 2014-2018, yet the messages timeframe say otherwise. Fuller knew she was DeFranco’s girlfriend and that DeFranco did not intend to marry. Fuller’s insistence on marriage and frustration with DeFranco’s lack of interest in making it official caused tension between them.

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