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Removing Common Law Status with TDCJ

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  • TexasDust
    started a topic Removing Common Law Status with TDCJ

    Removing Common Law Status with TDCJ

    Removing Common Law Status with TDCJ

    If your loved one filed a TDCJ Informal Marriage Document and wants the status to be changed, you may follow these steps.

    Keep in Mind: Removing TDCJ Common Law Status with TDCJ varies unit to unit and circumstance to circumstance. The more evidence you can provide to TDCJ to warrant the change in marital status the better.

    1. Request a Marriage Verification Letter from Texas Vital Statistics. It may take about 20 days for the marriage verification letter to arrive. This will show that the incarcerated spouse does not have a common law marriage or legal marriage ceremony currently on file with the state of Texas.*

    2. Send your loved one the below attached Affidavit of Common Law Dissolution. They should fill it out and get it notarized when the request for marriage verification arrives.

    Download File

    3. The incarcerated loved one should turn in an i-60 to inmate records/classification and request that their status be updated to reflect they are no longer married. It is important to include both items referenced in Step 1 and Step 2 with their i-60 request.

    Most units will honor the change with one or both of the above listed items. We encourage you to obtain both. In some instances the unit will not accept the above referenced items and instead request an actual Final Decree of Divorce. If this happens and you feel it is unwarranted, you or the incarcerated loved one may contact Offender Counsel in Huntsville. (936) 437-5203
    In some matters if children or property are involved an actual divorce may be necessary.
    For more information on TDCJ common law you may reference the TDCJ State Counsel for Offenders Handbook.*
    Last edited by TexasDust; 05-18-2019, 02:27 AM.

  • TexasDust
    How to File for Common Law Divorce in Texas

    Texas recognizes common law marriage, which is a marriage without a marriage ceremony or marriage license. To end a common law marriage in Texas, you can simply go your separate ways or file for divorce. The spouse who files for divorce has to prove there was a common law marriage.

    Only a few states recognize common law marriage, including Texas. A common law marriage in Texas is that in which two people are considered to be married without having a marriage ceremony or marriage license. A common law marriage has the same legal effect as a ceremonial marriage, so a common law divorce follows the same legal process as all divorces, with an additional requirement of proving the common law marriage.

    Common Law Marriage in Texas

    To have a common law marriage in Texas, you must both be over the age of 18, agree to be married, live together as spouses (cohabitation) and tell other people (not only family and close friends) that you are married. It doesn't matter how long you have been living together or whether you have children together. The Texas Family Code defines a common law marriage as an "informal marriage."

    Common Law Divorce in Texas

    Getting a divorce when you have a common law marriage is the same as with a ceremonial marriage, except you must first prove to the court that you were married. The person that first files divorce papers with the court is responsible for proving that there was a common law marriage.
    As a practical matter, you don't have to get a common law divorce as you could simply part ways and act as if the common law marriage never existed, but if you have property or children together, you may want to rely on legal provisions at a later stage. A common law marriage divorce allows the court to divide marital property, assign rights and obligations on any children of the marriage and terminate communal property rights in future property acquired by either of the spouses.
    The grounds for a common law divorce in Texas are in supportability (i.e., the marriage cannot continue due to disagreements or differences that cannot be resolved), mental or physical cruelty, adultery, a felony conviction resulting in one spouse being imprisoned for at least one year without pardon, abandonment for at least one year, living apart without cohabitation for at least three years, and confinement in a mental hospital for at least three years for a mental condition that will not improve. Common Law Marriage Divorce Procedure

    The easiest way to prove a common law marriage is to complete a Declaration of Informal Marriage form, available from your county clerk’s office. File the completed form with the county clerk. Once this is filed, it is very difficult for a spouse to later dispute the existence of a common law marriage. If the parties do not agree that they have a common law marriage, the party who wants to file for divorce has to prove that the marriage existed. Normally, this is done by trial in divorce proceedings.

    Otherwise, the divorce process is the same. Complete a petition for divorce (providing the date you started living together as spouses where the form asks for the date of marriage). File the completed petition at the district court in the county where you or your spouse have lived for three months, and request a citation, a document telling your spouse you have filed for divorce. Serve your spouse with the citation and a copy of the filed petition using a private process server or county sheriff.

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  • TexasDust
    On TDCJ's Affidavit of Informal Marriage it states, "The information in this affidavit is true and correct to the best of my knowledge and intended as a declaration of informal marriage consent with the laws of the State of Texas. I understand that the information contained herein shall be considered by the Texas Department of Criminal justice for operation purposes, to include employment and/or visitation, and shall not serve as a filing Declaration of Informal Marriage in accordance with the Texas Family Code."

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  • TexasDust
    I read an answer concerning the TDCJ Affidavit of Common Law Marriage for TDCJ Visitation only purposes and it mentioned that you can wait 2 years or you can go to the courthouse and get a paper from the clerk stating that there is No Record on File of said Common Law Marriage or you can get a divorce

    A common-law marriage is recognized in Texas as follows:

    TEXAS FAMILY CODE § 2.401. PROOF OF INFORMAL MARRIAGE. (a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:
    (1) a declaration of their marriage has been signed as provided by this subchapter; or
    (2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.

    TDCJ doesn't require a Declaration of Informal Marriage be registered with the county clerk. All that is required is both parties must provide sworn affidavits to TDCJ stating that they have lived together in Texas as husband and wife and represented to others that they were married. The main thing is you must state that you lived together as husband and wife prior to his incarceration. The prisoner can use an unsworn declaration on his/her affidavit. The free spouse must provide a sworn affidavit that is notarized by a notary public. It does not require you to go to the county clerk for anything.

    Here's what the TDCJ Offender Handbook says:

    Spouse (common law or ceremonial). The person listed as an offender’s
    spouse on the offender’s approved Visitors List shall be eligible for contact
    visits. Any change of an offender’s spouse on the Visitors List must be
    verifiable by the Warden or designee (i.e., proof of divorce must be provided
    by the offender when a change in spouse is requested on the visiting list). A
    copy of the marriage license or other acceptable legal documents shall be
    used for verification. Acceptable documentation for establishing a common law
    marriage status is a Declaration and Registration of Informal Marriage. A
    declaration of informal marriage shall be executed on a form prescribed by
    the Bureau of Vital Statistics of the State Department of Health and provided
    by the County Clerk. In absence of a Declaration and Registration of
    Informal Marriage, both the offender and the common-law spouse (must be sworn) may submit to the Warden affidavits declaring their marriage. The offender may use an unsworn affidavit under penalty of perjury (§§132.001 – 132.003, VTCA Civil Practice and Remedies Code). However, the common law spouse must provide an affidavit certified by the County Clerk or notarized by a Notary Public.Any other form of registration acceptable to the Bureau of Vital Statistics is considered acceptable proof of marriage. A copy of the documents shall be placed in the offender’s unit file.

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  • TexasDust

    There was no need to end the Common Law Marriage through legal process as it had never been filed with the county clerk and both parties agreed on the dissolution of their relationship. The intent of common law marriage is to protect both parties in the event that the relationship ends without formal marriage in place which has specific divorce rules not afforded to people who don't make the marriage declaration.
    Divorce and all of its protections and rules under state law can and do apply if one or both parties can't agree on property and financial matters at the end of a relationship that meets the common law set of proofs. If neither party has an issue with the division of assets then there's no need to formally divorce as far as the state is concerned.

    Common Law Divorce
    If you and your spouse remain apart for 2 years without taking any legal action to end the marriage, the law presumes a marriage never existed. However, this presumption is rebuttable if evidence is presented.
    While, in many cases, the spouses can simply go their separate ways, a spouse who wants to take advantage of the benefits granted in the Texas Family Code must first prove a common law marriage. For instance, a divorce in a common law marriage (just as in a formal marriage) allows the court to assign rights and obligations, protect assets, and divide up marital property.
    You may, however, want to deny the existence of a common law marriage. The most common reason for doing so would be to prevent your alleged spouse from exercising community property rights over your property in a divorce or probate proceeding.
    With regard to issues dealing solely with children, it is not necessary to litigate the existence of a common law marriage. Parental rights and duties exist regardless of the parents' marital status

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