We never filed our marriage license in Texas. Is the marriage valid?

Question

In 1996, my ex and I obtained a marriage license, had a ceremony with the justice of the peace, and the license was signed. We were told to officially record it and we did not do so. Not on purpose.. just both slackers really and forgetful. We never received any certified copy. We were together for 7 years, had a child, and split up 3.5 years ago.

Were we ever legally married? Do I need to get a divorce? The question has come up now as I'd like to buy a home and the mortgage broker asked if I'd ever been married and if so, when was I divorced. I'm not sure what to tell him!

I've called the county and the state and they both say I need to ask a lawyer. When I searched the county records a few years ago I found no record of our marriage. What does this mean? Does the common law thing apply instead? If so, do I still have to get divorced?

Answer 1

Funny you should ask that question. The identical (or nearly so) facts happened some years ago -- although they won't help you -- with respect to a couple who got their marriage license in Bowie County Texas but were married in Miller County Arkansas, across the street in Texarkana!

The Arkansas Supreme Court held that the marriage was valid. I don't think the reasoning works for Texas. But, Texas recognizes COMMON LAW MARRIAGE. You certainly held yourselves out as married, and had a child. Therefore you need a divorce. (I am assuming that you were legally domiciled in Texas.) Your child is legitimate. Your property is subject to community property rules.

As for the registration of the license. The general rule is that the innocent parties -- usually one spouse, and the children -- are protected from the mistake or misrepresentation or wrongful act of the other spouse. But it seems to me (and I am not licensed in Texas to practice law) that the common law marriage rule makes all the rest irrelevant.

It always amuses -- and dismays -- me when non-lawyers opine about questions like this on Y! Q/A. Most of the answers are wrong; a few are right for the wrong reason. One correctly refers you to common-law marriage rules. But there is a separate issue that would have applied even if common-law marriage didn't exist: the issue of whether failure to file the registration document nullifies the marriage. That depends on state law; but in most states the officiant has to send in the document, and the couple can't (or shouldn't) be held liable for the failure of the officiant to do so through no fault of their own.

As you will see from Husband v. Pierce, Texas law is rather forgiving about technical errors in registering marriages. It seems to me that even without relying on common-law marriage, the marriage is valid. And that as in other states, the officiant is the one who is supposed to mail the license back to the County Clerk for recordation (although delegating that to another, including the married couple, is not clearly a violation of duty).

Answer 2

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Answer 3

Valid? Yes! Licit? Gray area.

In marital law, the distinction between validity and licity is real.

With bigamy, the second marriage is *valid*, the bigamist is in fact legally married to two (or more) people at the same time. The crime is that you are validly married two or more spouses simultaneously. The subsequent marriage is *illicit* but most definitely not *invalid*. Bigamous marriages, where there is an innocent party, are automatically eligible for an instantaneous no-hassle annulment; if there is a child, a divorce is probably better advised.

For bad filing procedures, the validity of the marriage is not in question. The only issue is one of licity, and in this instance, it is not really a major issue.

Yeah, you need a real divorce.

Answer 4

RE:
We never filed our marriage license in Texas. Is the marriage valid?
In 1996, my ex and I obtained a marriage license, had a ceremony with the justice of the peace, and the license was signed. We were told to officially record it and we did not do so. Not on purpose.. just both slackers really and forgetful. We never received any certified copy. We were together...

Answer 5

The first thing you must know is if you want to save your marriage and if you find yourself alone in this desire, waiting for the other spouse to make the first move is the beginning of the end. Learn here https://tinyurl.im/aHL27 If you are looking for someone to blame or someone else to put the emotional and physical work into saving the marriage, again, it's going to fail.

Answer 6

Speak to a lawyer. Common law or regular marriage can grant him claims against your property depending on the situation. So if you want to protect yourself and your property, you may need to file some legal documentation.

Answer 7

nope. If you never filed you are not legally married. I don't know about texas but in most states now a days there is no common law

Answer 8

If a jp signed the licenses, your legally married, and yes you do have to file for a divorce

Answer 9

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If he would lie about something as simple as that - what else is he lying about? Are you sure he was single? Maybe he was married in that state and never divorced. If so, then your marriage would be null and void. I think you need a lot more answers.

Answer 10

In the eyes of the state, you are married. You have lived together and represented yourselves as being married. That's all it takes!

Having said that, you really need to get an attorney and get this squared away. Stop procrastinating! It ain't gonna fix itself. You owe it to your child to resolve these issues before he's old enough to start asking questions.