When a divorce helps to define a marriage

Interesting case.

A gay San Antonio man has filed for a divorce in which he seeks to prove a common law marriage existed with his former partner of 25 years when federal law prohibited same sex marriage. The law has since then been ruled unconstitutional by Obergefell vs. Hodges in 2015.

If he is successful in his divorce petition, Christopher Hoffman would be eligible for alimony and other benefits from his former partner Moises Ortiz. It would also mark the first time in Texas that a common law [informal] divorce would be granted to a same sex couple who were together prior to Obergefell.

The Texas Family Code provides two methods for establishing a common law [informal] marriage. The first is to “file a declaration of informal marriage with the county clerk. Tex. Fam. Code 2.40l(a)(l).” The second is by showing that “I) the parties ‘agreed to be married’; 2) that the parties lived together as spouses; and 3) that they ‘represented to others that they were married.’ Tex. Fam. Code 2.401 (a)(2).” Additionally, the partner seeking to establish the existence of a common law marriage “bears the burden of demonstrating the three elements by a preponderance of the evidence.”

According to court documents, Hoffman and Ortiz lived together for 25 years beginning in 1994. Hoffman filed for the common law divorce on July 19, 2019 citing adultery and mistreatment among other reasons. In responding to Hoffman’s assertion, Ortiz denies that a common law marriage existed, saying that he and Hoffman had only been roommates.

On July 30, 2019, Judge Mary Lou Alvarez of the 45th District Court of Bexar County found that Ortiz’s claim that he and Hoffman “were simply roommates that acted as partners to be incredulous testimony.” The judge went on to issue a temporary order requiring Ortiz to pay Hoffman $1,200 monthly for interim spousal support until a final jury trial’s verdict.

On January 22, 2021, Ortiz’s attorney filed a motion for a Declaratory Judgment which would have made a final, legally binding declaration that Hoffman’s petition was not valid.

Ortiz contended that there was no precedent in Texas state law to show that Obergefell applies retroactively to same sex couples. Hoffman’s attorney countered that there had been two incidents (Ford v. Freemen 2020 and Hinojosa v. LaFredo 2012) of courts in Texas recognizing “a pre-Obergefell same sex common law marriage. However no Texas appellate court has issued any binding authority on the issue.”

(Lambda Legal Senior Staff Attorney Shelly Skeen authored a brief in the Hinojosa v. LaFredo case.)

There are a couple of precedents I could cite for pre-Obergefell marriages later getting legally dissolved in Texas. Way back in 2010, a Travis County district court judge granted a divorce to two women who had been married in Massachusetts. Then-Attorney General Greg Abbott sued to undo the divorce ruling on the grounds that their marriage was not recognized by the state of Texas. That case went all the way to the State Supreme Court, which ruled against Abbott, upholding a Third Court of Appeals decision that Abbott didn’t have standing because he waited to intervene until after the original district court ruling. That ruling happened a few months before Obergefell, and SCOTx was emphatic that it was not saying anything about the constitutionality of same-sex marriage, just about the AG’s standing to intervene in that case.

In 2014, there was a divorce and child custody filing in Bexar County, also between two women who in this case had been married in Washington,. That one had been filed eight days before a federal judge ruled that Texas’s law against same-sex marriage was unconstitutional; this was the original Texas case filed by Cleopatra De Leon and Nicole Dimetman, and Vic Holmes and Mark Phariss. The judge in that Bexar County case later also ruled that Texas’s law against same-sex marriage was unconstitutional, basing her opinion on the federal case while specifying sections of the state’s Family Code as being illegal. She also cordially invited Greg Abbott to butt the hell out, which kind of makes her my hero. I don’t have any further updates on that case, so it’s my best guess that it eventually proceeded to a normal resolution in the courts.

Finally (yes, I went deep on this one; it’s a topic that fascinates me), there was a post-Obergefell divorce granted in Tarrant County, the culmination of a proceeding that had been filed in 2013. It appears that it was the SCOTUS ruling on same-sex marriage that spurred the case resolution for this one.

So with all that said, and with the usual proviso that I Am Not A Lawyer, I like plaintiff Hoffman’s chances, on the grounds that this is in every other way a pretty normal, boring divorce case that will ultimately be decided on the merits. It’s certainly possible that some bad actors might try to get involved in an effort to pursue a ruling that might draw a distinction between “traditional” marriage and same-sex marriage. I don’t know how that might happen, and I don’t know if it can happen if defendant Ortiz objects to their intervention, I just know that the there are definitely people who would like to intervene in this fashion and for this purpose, and I wouldn’t put it past them. Anyway, I’ll try to keep an eye on this one, just to see how it goes. The trial begins today, so we may know more soon.

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4 Responses to When a divorce helps to define a marriage

  1. N.M. Horwitz says:

    In 2014, predicting this issue would arise was one of my father’s main issues in his then-unsuccessful probate court campaign. It’s somewhat surprising it has arisen in the divorce context more than in the heirship one.

  2. C.L. says:

    Question to be decided first is, I suspect, whether or not these three things took place during the 25 yrs the two lived as ‘roommates’…

    (I) the parties ‘agreed to be married’; 2) that the parties lived together as spouses; and 3) that they ‘represented to others that they were married.’

    I’d think both he and he would have to be on board with all three things first, before either one could declare themselves married to the other, but I’m just an Unfrozen Caveman Lawyer…

  3. policywonqueria says:


    Historically, there are issues of insufficient or conflicting evidence in trying to prove an informal marriage in court, in the absence of a registration certificate.

    But this scenario here represents an additional conceptual conundrum:

    1. Consent/Agreement to be married. Can you have agreed to assume a legal status that the law did not recognize at the time? Note that the formation of the marriage based on mutual consent would have had to have occurred at a certain point in time so the time-frame is relevant (pre-Obergefell decision), and a putative but technically void marriage could not have existed in the absence of legal recognition of a same-sex relationship as a marriage.

    2. Cohabitation & Holding out to the community. While adducing evidence of having lived together may not be a problem, the “as husband and wife” nature of the co-residency/cohabitation poses a problem, for the same reason as 1. above, but with the additional problem that others would not have acknowledged the “as spouses” nature of the relationship, nor would there be joint federal tax returns (filing “married”). And does the concept of “holding out as married” make any sense as long as state and society consider that concept absurd (prior to Obergefell and in light of Texas const. saying that marriage is limited to male-female pairings?



    Sec. 32. MARRIAGE. (a) Marriage in this state shall consist only of the union of one man and one woman.

    (b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

    (Added Nov. 8, 2005.)

    Note also that the Texas Family Code does not use the term “common law marriage” and that the parties to it formal or informal marriage are “man” and “woman”, rather than the gender-neutral term spouse:


    Sec. 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.

    (b) If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.

    (c) A person under 18 years of age may not:

    (1) be a party to an informal marriage; or

    (2) execute a declaration of informal marriage under Section 2.402.

    (d) A person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party to the informal marriage or declaration of an informal marriage, as applicable.

    Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997. Amended by Acts 1997, 75th Leg., ch. 1362, Sec. 1, eff. Sept. 1, 1997.

    Amended by:

    Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 4.12, eff. September 1, 2005.


  4. Kenneth Fair says:

    I’ve litigated a couple of common-law marriage cases and am pretty familiar with the case law in the area. I don’t think this is that hard of a question. De Leon v. Perry invalidated Texas Constitution Article I, Section 32 and Texas Family Code § 2.401 to the extent that they limit same-sex marriage. Furthermore, it’s pretty clear from De Leon and other post-Obergefell cases that this validation of same-sex marriages was intended to be retroactive as well as prospective. If the couple agreed to be married, held themselves out as married, and lived together, then they are married in Texas regardless of whether the state recognized that marriage pre-Obergefell. In particular, the state allows a same-sex couple to get an informal marriage license even if the marriage occurred pre-Obergefell.

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