Cameron Miranda
Texas is a common-law state, meaning that a legal wedding ceremony is not required to claim common-law marriage. The Texas Department of Criminal Justice (TDCJ) has an Affidavit of Informal Marriage form for visitation, which can be used by an inmate and their common-law spouse. The three elements of a common-law marriage are: (1) the present intent and agreement to be married; (2) continuous cohabitation; and (3) public declaration that the parties are husband and wife. If you are trying to prove you are common-law married, you may have a difficult time doing so as the burden of proof is on you. To prove a common-law marriage, documents such as lease agreements, tax returns, and insurance policies may be requested.
| Characteristics | Values |
|---|---|
| Common law marriage in Texas | Legal and valid |
| Requirements | Present intent and agreement to be married, continuous cohabitation, public declaration of marriage |
| TDCJ common law marriage affidavit form | Available online |
| Affidavit of Informal Marriage form | Available from the Texas Department of Criminal Justice |
| Affidavit submission | The inmate can file an unsworn affidavit, the spouse must have their affidavit certified by a notary |
| TDCJ Visitation policy | Details available on the TDCJ website |
| TDCJ wedding process | Requires an officiant, premarital course (optional), inmate ID, absent affidavit form, marriage license |
| Wedding ceremony | Takes place in the unit visitation area, may be in-person or behind glass depending on the inmate's custody level |
| Wedding dates | Each unit designates 2 days per month for wedding ceremonies, usually on weekdays |
| Wedding officiant | Can be chosen by the couple, must be TDCJ-approved |
| Premarital counseling and education | Optional |
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What You'll Learn
TDCJ Affidavit of Informal Marriage form
In Texas, common-law marriage, also known as marriage without formalities or informal marriage, is a valid and legal way for a couple to marry. The Texas Department of Criminal Justice (TDCJ) has an Affidavit of Informal Marriage form for visitation. This form can be used by a person who is incarcerated and their common-law spouse. The inmate can file an unsworn affidavit, while their spouse must have their affidavit certified by a notary.
There are two methods to present yourself as common law married to an incarcerated individual:
- Before your loved one was incarcerated, you could have gone to the local county clerk's office and filed an Affidavit of Informal Marriage. This would have required both parties to be present. If you took these steps prior to incarceration, you may obtain a certified copy of the informal declaration of marriage from the county clerk and send it to inmate records at your loved one's specific TDCJ unit and request the status be honored.
- When your loved one arrived in TDCJ, they are given the opportunity to add you to their family tree and visitation list. Your status at that time can be listed as common law, however, TDCJ typically requires you to fill out their Affidavit of Informal Marriage.
The TDCJ Affidavit of Informal Marriage form can be filled out on both iOS and Android devices. The form is fillable and can be downloaded, printed, or exported to your preferred cloud storage service. The form requires personal information such as your name, address, date of birth, and social security number.
It is important to note that the burden of proving the existence of a common-law marriage falls on the individuals claiming it. If your loved one is no longer at an intake facility, some units may no longer honor the informal marriage request if it wasn't completed during intake or if the offender has been incarcerated for an extended period.
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Proving common-law marriage
Texas is one of the few states that recognize common-law marriages. These informal unions, which don’t require a marriage license or traditional ceremony, can have serious legal consequences, especially when they dissolve.
To prove a common-law marriage in Texas, couples must meet three conditions simultaneously:
- Mutually agreeing to be married: The court will consider actions the two parties have taken that are similar to the actions traditionally married couples take. For example, making major joint purchases together (homes, vehicles, and other items that tend to be considered marital property in traditional marriages). While a written or verbalized agreement in front of witnesses is best, the State does recognize tacit or inferred agreements. In other words, the court will consider things such as using your partner’s last name, making them a beneficiary on a life insurance policy, filing joint tax returns, or making joint purchases.
- Living together: The couple must cohabitate in Texas as spouses. There is no requirement for how long the couple must live together. What’s important is that they maintain a household together and do things associated with being a married couple.
- Holding out to others that they are married: This can be proven by testimony from friends, family members, or community members who can attest that the couple represented themselves as married. Declarations such as consistently calling each other husband and wife in public, proudly displaying their wedding rings, and taking actions like those listed above may also be used to support claims of a common-law marriage.
The easiest and most clear-cut way to legally establish an informal or common-law marriage is for the couple to go to the county clerk’s office together and sign a declaration of informal marriage. After this, the couple can obtain a marriage license in Texas.
To avoid disputes, couples in a common-law marriage should maintain documentation that proves the relationship, such as joint leases, bank accounts, and tax filings. One of the biggest challenges of proving a common-law marriage is the need for formal documentation. Without a marriage certificate, the burden of proof is on the party claiming the marriage.
If no declaration was filed and there is a dispute as to whether a common-law marriage existed, it may be necessary to go to court in order to prove the marriage. Texas law places a two-year statute of limitations on these types of proceedings. If court proceedings are not filed within two years of the separation, Texas law presumes a common-law marriage never existed unless proven otherwise.
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Requirements for common-law marriage
Texas is a common-law state, meaning that a legal wedding ceremony is not required for a couple to claim common-law marriage. However, it is important to note that the requirements for common-law marriage may vary depending on the state and jurisdiction. Here are some general requirements for common-law marriage:
Cohabitation
One common requirement for common-law marriage is cohabitation, which means living together as a couple. The amount of time a couple lives together can vary, and there is no statutory requirement for the length of time. However, generally, the longer a couple lives together, the stronger their case is for common-law marriage. It is important to note that cohabitation as unmarried individuals is not enough to establish a common-law marriage.
Legal Capacity to Marry
Both partners must have the legal right or capacity to marry. This usually means they must be at least 18 years old, of sound mind, and not already married to someone else. If a person is still legally married but is in the process of getting a divorce, they cannot enter into a common-law marriage until the divorce is finalised.
Intent to be Married
Both partners must have the intent to be married and hold themselves out to friends, family, and the public as a married couple. This means they present themselves as married and behave as a married couple would.
Affidavit of Informal Marriage
In Texas, the Texas Department of Criminal Justice (TDCJ) has an Affidavit of Informal Marriage form for visitation purposes. Both the inmate and their common-law spouse can submit the affidavit to the warden. The inmate can file an unsworn affidavit, while the spouse's affidavit must be certified by a notary. Additionally, before incarceration, a couple can go to the local county clerk's office and file an Affidavit of Informal Marriage, requiring both parties to be present.
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Common-law marriage and divorce
Texas is a common-law state, meaning that a legal wedding ceremony is not required for a couple to claim common-law marriage. The Texas Department of Criminal Justice (TDCJ) has an Affidavit of Informal Marriage form for visitation purposes. Both the inmate and their common-law spouse can submit the affidavit to the warden. The spouse must have their affidavit certified by a notary.
There are two ways to establish a common-law marriage in Texas:
- Sign a "declaration of informal marriage" with the county clerk's office.
- The parties must agree to be married, live together in Texas as husband and wife, and hold themselves out to the public as husband and wife.
If a common-law couple decides to split up, they must go through the same divorce process as a couple with a formal marriage. This is to ensure that their interests are protected and to avoid problems in the future, especially if the couple has children, property, or assets together. However, if two years pass after a common-law marriage couple separates and neither party has filed anything to prove the marriage, Texas law presumes that the marriage never existed unless proven otherwise.
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TDCJ wedding process
Texas is a common-law state, meaning that a legal wedding ceremony is not required for a couple to be considered married. In the context of the Texas Department of Criminal Justice (TDCJ), there are two methods to present yourself as common-law married to an incarcerated individual:
Before incarceration:
- Go to the local county clerk's office and file an 'Affidavit of Informal Marriage'. This requires both parties to be present.
- Obtain a certified copy of the informal declaration of marriage from the county clerk.
- Send the copy to inmate records at the specific TDCJ unit and request that the status be honored.
After incarceration:
- When the incarcerated individual arrives in TDCJ, they can add their partner to their family tree and visitation list, listing their status as common-law.
- TDCJ typically requires the couple to fill out their 'Affidavit of Informal Marriage' form for visitation.
For those seeking to marry their incarcerated loved one, the TDCJ wedding process is as follows:
- Go to your local county clerk's office and obtain an "Affidavit of Absentee Application for Marriage License".
- Find an "Officiant" to perform the marriage ceremony.
- Mail the "Affidavit of Absentee Application for Marriage License" and the name of the "Officiant" to your LO.
- Your LO must then submit an I-60 to the Law Library with the following information: "I would like to begin the marriage process. My fiancée’s name is ______________. Our Officiant’s name and contact information is ______________________________".
- After processing the request, your LO will be issued a lay-in to go to the law library and complete an I-25 (withdrawal slip) for $0.10 to obtain a certified copy of their prison identification card.
- Arrive early for the wedding, as you will need to be screened and escorted to the area to meet your fiancée.
- If your fiancée is behind a glass partition, be mindful that they can hear and understand what is being said during the ceremony. Keep any kissing during the ceremony quick and PG-rated, and be respectful of TDCJ personnel.
- A copy of your signed Marriage License will be taken prior to leaving the Unit for the incarcerated person's records.
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Frequently asked questions
Common-law marriage, also known as marriage without formalities or informal marriage, is a legal way for a couple to marry without a ceremony or other formalities. The three elements of a common-law marriage are: 1) the present intent and agreement to be married, 2) continuous cohabitation, and 3) public declaration that the parties are husband and wife.
Proving a common-law marriage does not depend on how long you have been living together or whether you have children together. You can use documents such as lease agreements, tax returns, insurance policies, joint bank accounts, credit cards, and utility bills to prove cohabitation and financial interdependence.
There are two methods to present yourself as common-law married with your incarcerated loved one through TDCJ. Firstly, before your loved one was incarcerated, you could have gone to the local county clerk's office and filed an Affidavit of Informal Marriage. If you took these steps, you may obtain a certified copy of the informal declaration of marriage from the county clerk and send it to inmate records at your loved one's specific TDCJ unit and request the status be honored. Secondly, when your loved one arrived in TDCJ, they are given the opportunity to add you to their family tree and visitation list. You can list your status as common law, but TDCJ typically requires you to fill out their Affidavit of Informal Marriage.
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