Texas Marriage Laws-What You Need To Know…

Nearly everyday I review an email asking if I have marriage licenses.  The county clerk has marriage licenses not your wedding officiant.  Although I continue to wonder why anyone would assume this- today’s blog will address where to get a marriage license along with Common Law Marriages & Community Property as well as the minimum age to marry in Texas.

Let’s get started with your Marriage License- Both parties must be present to process an Application For Marriage.  The fee must be paid by cash, check or credit card and I’m attaching a link for you to review the questions you can expect to find on the application-Texas Marriage Application.   The marriage must be conducted within 31 days of the day the license is issued by the county clerk’s office.  Generally, there is a 3 day waiting period.  Persons under the age of 18 are required to have parental consent or a court order.  You cannot currently be married. You cannot marry a person with a blood relationship of first cousin or closer.  You cannot marry a current or former step-parent or step-child.

 A ceremonial marriage requires a marriage license issued by the county clerk.  You must complete a sworn application that establishes the facts required to show that you are legally eligible to enter into the marital relationship.  Although I have never officiated a marriage that involved couples under the age of 18, I’m aware of the laws regarding an underage marriage and am attaching information for parentsParental Consent Form For Underage Children To Marry In Texas.  

  Common Law or Informal Marriage- Created by any two persons over the age of 18 eligible to enter into a marital relationship, the Common Law marriage can be established by the husband and wife filing a Declaration of Marriage provided by the county clerk.  Although many Texans believe that they “can prove” a Common Law Marriage without a Declaration of Marriage if the man and woman (or couple) 1) agreed to be married; 2) live together as husband and wife (or couple) or 3) hold themselves out to others as husband and wife (or couple).  It should be noted that Texas Courts (Especially Probate Court) will often not recognize a Common Law Marriage without a corroborating Declaration Of Marriage-Common Law or Informal Marriage Application. 

 Knowing and understanding the laws regarding marriage in Texas along with other states I’m licensed to conduct weddings in is key to following procedures put in place to protect minors.  

If you have more questions regarding Marriage in Texas (or another state I’m licensed to conduct marriage in), please visit your area courthouse or contact me through any Wendy Wortham Website.

A marriage conducted without an application and signed by someone licensed to conduct a marriage in your state is not a legal or binding agreement.

If you choose to forgo a traditional marriage license and ceremony- I strongly encourage you to protect yourself and your partner by filing a Declaration and Registration of an Informal Marriage to ensure that if a death were to occur, you are legally recognized as a spouse.

My father is still in Probate Court (five years after the death of his beloved Gretta Fern Ozee).  The problem?  They did not file a Declaration and Registration of an Informal Marriage and were never married because they believed a will and the fact that they lived together for over 6 years would protect them in Probate Court- it didn’t and the fight over assets awarded to my father via the will continue to “hold up” a settlement for him.  Anyone assuming that a court will uphold your “Common Law Marriage Status” is sadly mistaken.

Another important document that my father didn’t have was a Body Disposition Affidavit- Texas Body Disposition Form Link. I strongly suggest any unmarried couple to have a copy of this affidavit on hand in the event you lose your partner.  Another “key” document is a Power of Attorney.

Finding out after the death of a loved one that you cannot make burial decisions is a real “sucker punch!”  Although my father paid for everything regarding Gretta’s funeral-her body was put on ice because her sister “trumped my father” by claiming to be the next of kin.  The truth is that my father was unable to prove his common law marriage to the funeral director AND probate court because he didn’t have a Body Disposition Affidavit or Informal Marriage Application on file. 

Although Kathy never came forward to handle funeral planning or to pay for the nearly $12k expenses incurred by my father, the State of Texas REQUIRES PROOF of your relationship to the deceased to make burial arrangements.  In Gretta’s case, my grieving father was forced to wait 30 days before the law would allow him to “take over” the plans that Gretta’s sister disrupted by claiming she would handle everything regarding the funeral as well as the expenses involved.  

For 30 days-my grieving father waited for me to move forward dressing Gretta and filling her cheeks with cotton where they had sunken in and finally by applying her makeup and jewelry prior to finishing the flowers I made and officiating her funeral ceremony.  Failure to properly file a Body Disposition Affidavit is a mistake for anyone who isn’t legally married or hasn’t filed a Declaration & Registration of an Infornal Marriage.  

Never assume that because you believe yourself to be protected by a Common Law Marriage that a Court of Law will simply “take your word on it.”  Your “word” is considered to be hearsay evidence without the Declaration and Registration of an Informal Marriage Application.  If you choose not to marry- you may be giving up certain rights simply because you believe that saying “you’re married” gives you the same rights as the act of marriage-the truth is that it doesn’t unless you follow legal guidelines put in place which is why I’m advising you to “get your affairs in order.”

Marrying a couple is a huge responsibility- whether I’m signing it or my son, Robert Hafele or daughter in law, Ann Alexander we all recognize and realize that a Marriage License is a legal and binding instrument.

Although marriage is glamorized with rings, cakes, wedding dresses and portrayed as a “party,” marriage should never be entered into lightly.  Marriage is a commitment to love, honor and cherish your partner.  

Make sure you are choosing the “right partner” to commit your life to.

Divorce is painful and ugly even when no children are involved.  Please be aware that it’s far easier to marry than it will ever be to divorce your partner!

There are laws in place to protect you whether you realize it or not and I strongly suggest familiarizing yourself with a commitment that you and your fiancée are entering into without being “blinded” by the glamor of a wedding. 

 Have you ever met a woman who didn’t dream of a white wedding with all of the frills?  Many young  girls are so focused on their dream wedding and Prince Charming that it becomes more important than college or a career and when things don’t work out, the pain of a divorce is something your daughter will never forget.

I often tell couples that there will be joys and sorrows in a marriage because I’ve been married most of my adult life and understand the ups and downs of marriage.

What if you husband loses his business or gets laid off?  Will you fight over money?  Will you stand behind him until he can get back on his feet?  What about these things happening to the wife?  Unexpected illness?  Things you’ve never thought about happen everyday- put the glitz and glamour on the back burner until you are sure that no matter what happens when your hands are old and withered-they will still be reaching for each other.

Although divorces happen everyday- marriage is not like buying a car- it is and always will be a lifelong commitment whether you spend a lifetime together or not, you aren’t “planning on a divorce at your wedding.”  No one does.

Yesterday my son told me he didn’t want to officiate a wedding for my niece because he wasn’t sure she would stay married.  Frankly, I’m not either as no one in my family is welcoming Arthur (who we know nothing about) into marrying Stephaney.  However, I never know who will stay married or won’t and told my son it’s something no one on my team can predict.

Our role is to officiate and pray they stay together but occasionally we cry upon learning that a once happy couple we’ve witnessed marrying has divorced and moved on.

Divorce is like death- it’s the end of something that began as a joyous and celebratory event.  No one I’ve ever married considered the possibility of a divorce.  

If you are considering a pre marital agreement to protect your assets prior to entering into a marriage, your fiancé may be offended but exploring all of your options prior to marriage is becoming more and more common.

The Texas Family Code allows parties to enter into a prenuptial agreement, or prenup, before marriage and makes those agreements enforceable as long as they meet the requirements set out in The Texas Family Code.  A prenuptial agreement stays in effect during the marriage and in the event of divorce, will govern how property is divided during the divorce.  The prenuptial agreement can also govern certain issues that arise during the divorce but not during the marriage, such as spousal and child support or alimony.  

Texas is a community property state and property or assets owned by one or both parties prior to the marriage will remain your separate property, so long as you can prove it belonged to you prior to the marriage or you recieved it as a gift, devise or descent (a gift from somebody while they lived or after they died).

The main role of a prenup is to govern property dissolution in a divorce.  However, a prenup will also control the distribution of property upon your death to avoid what would be community property from going to your or children from another marriage.  On the other hand, you may want to make sure that all of your separate property goes to your spouse and/or kids and not to siblings, parents, or other people in your family tree.  The goal of delivering all of your property to your chosen family members may be more beneficially performed through an estate planning document such as a will or trust.

No one plans for a death or a divorce when they are planning a wedding.  But by “being prepared” and knowing what you are entering into, you may want to consider options.

Wendy M Wortham