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Void Marriages in Texas

Annulment & Void Marriages

This article answers common questions about void marriages in Texas.

Here, learn about void marriages in Texas and the process to end them. The article covers void marriages, how void marriages differ from annulments and divorces, and the rights of putative spouses in Texas.

What is a suit to declare a marriage void?

Texas law does not allow two people to get married in certain situations. This could be because one or both of them is too young. It could be because they are related to each other, or because one of them is already married. A void marriage is not valid under Texas law. The spouses cannot agree to make it a valid marriage. 

A suit to declare a marriage void is a legal process that ends a legally invalid marriage. After a court enters an order declaring the marriage void, it will be like the marriage never happened. 

How are annulments and suits to declare a marriage void different? 

An annulment also focuses on reasons why the marriage was never valid in the first place. Unlike a void marriage, however, spouses who are eligible for an annulment do not have to go through with it. They can agree that their marriage is valid. A void marriage is void no matter what the spouses would like to do. 

How are divorces and suits to declare marriage void different?

A divorce ends a valid marriage. A suit to declare a marriage void ends a marriage that was never valid under Texas law. 

After a court declares a marriage void, it will be like the marriage never happened, at least in a legal sense. The spouses might still have to deal with issues like property and children, though. 

What are the grounds for a suit to declare a marriage void? 

Texas law considers the following marriages to be void: 

  • Incest: The spouses are related to one another by blood or adoption. Prohibited marriages include a parent, child, grandparent, grandchild, sibling, aunt, uncle, niece, or nephew. 

  • Bigamy: A spouse is already married to someone else. 

  • Minor spouse: A spouse is under the age of 18 and a court has not emancipated them. 

  • Stepchild or stepparent: The spouses are currently stepparent and stepchild, or they formerly had that relationship. 

Learn more at Requirements for Ending Void Marriages in Texas. 

What if my marriage is void due to bigamy but I still want to be married to my spouse?

A marriage that is void because of bigamy can become a common-law marriage. The following must happen: 

  • The previous marriage ends, such as by divorce or annulment. 

  • The spouses live together and hold themselves out as married. 

The common-law marriage would begin on the date the previous marriage ends. For example, suppose two people, A and B, get married on March 1. They start living together and telling people they are married right away. A was already married to C, though. A and B’s marriage is void. 

Now suppose that on April 1, A and C get a final decree of divorce. During this time, A and B are still living together and calling themselves a married couple. Their common-law marriage becomes official on April 1. 

What is a putative spouse?

A “putative spouse” is someone who believed that the marriage was valid when they got married. Texas law offers protection to people who believed that they were legally married. A person claiming to be a putative spouse must show the following: 

  • They believed in good faith that the marriage was valid. 

  • They did not know about the facts that made the marriage void. 

Many putative marriages involve bigamy. One spouse hides the other marriage from the putative spouse or lies about getting divorced. In that situation, the putative spouse might have the legal rights of a spouse. They might be entitled to an equitable division of property, like in a divorce case. If the other spouse dies, the putative spouse might have some inheritance rights. 

How does a court decide if a spouse is a putative spouse?

To prove that you are a putative spouse, you must convince a court that you had a good faith belief that the marriage was valid. Courts in Texas might consider the following factors: 

  • Marriage documents 

  • Supposed divorce documents 

  • Testimony about your marriage ceremony 

  • Whether you and your spouse lived together 

  • Your age and life experience 

  • Your distance from where the false divorce took place 

Books like O'Connors Texas Family Law Handbook, which you can find at your nearest law library, have a larger discussion of how courts determine if someone is a putative spouse.  

Is a marriage between two people of the same sex void in Texas? 

No. Marriages between two people of the same sex are valid in Texas. A marriage might be void for other reasons, but not because the spouses are of the same sex. 

Section 6.204 of the Texas Family Code still states that same-sex marriages are void, but that law is no longer enforceable. The U.S. Supreme Court’s 2015 ruling in Obergefell v. Hodges held that same-sex marriages are valid. This decision overruled Texas law. 

How long must I reside in Texas to file a suit to declare a marriage void?

A suit to declare a marriage void in Texas does not have the same requirements as a divorce case. You do not have to have lived in Texas for any specific period of time. You only have to show one of the following: 

  • You or your spouse lives in Texas; or 

  • The marriage took place in Texas. 

Where can I file a suit to declare a marriage void? 

You can file a suit to declare a marriage void in the same courts that handle divorce cases. This is usually a district court or county court. 

You should file in the county where all or most of the relevant events took place. This might be where the marriage took place or where your spouse lives. If you got married in Houston, and your spouse lives in Dallas, you can file in Harris or Dallas County. 

Is there a waiting period to get a decree declaring a marriage void? 

There is no required waiting period to get a decree declaring a marriage void. Courts are busy, though. It can take time to get a court date, especially if you need a complicated hearing. You will probably have to wait at least a few weeks. 

What if there are children involved? 

If you and your spouse had or adopted children during the marriage, you have more legal issues to address. The suit will have to include a suit affecting the parent-child relationship (SAPCR). The SAPCR will include issues like visitation rights and child support. 

You should consider getting legal help if your case involves a child or children. You can speak to legal aid or a private attorney. If you are concerned about the cost of a private attorney, limited-scope representation might be available. 

What if there is property involved? 

Property division in Texas usually requires a valid marriage. Without a marriage, there is no community property to divide. A putative spouse, however, might have the same rights as a divorcing spouse. This includes property division and, in some cases, spousal maintenance. As discussed above, you must prove that you had a good faith belief that the marriage was valid. 

A “meretricious spouse” is one who knew about facts that would make the marriage void when they got married. A spouse who hid the fact that they were already married, for example, is a meretricious spouse. Both spouses in a void marriage can be meretricious. Meretricious spouses are not entitled to spousal maintenance under Texas law. 

A lawyer who practices family law can help you deal with property issues.

What can I do if I don’t qualify for a void marriage? 

A suit to declare a marriage void is only available in specific circumstances. If you do not meet the requirements set by Texas law, you might still be eligible for an annulment. Otherwise, you can still qualify for a divorce. Please see our resources on annulment and divorce for more information. 

Do I need legal advice? 

Legal advice from a lawyer who practices family law can save you time and money in the long run. If you have children, or if you or your spouse have assets like a house or retirement account, your case could become complicated. An attorney can review your situation and inform you about potential issues of concern. 

The State Bar of Texas Lawyer Referral Information Service, 800-252-9690, can help you find a private lawyer. Many lawyers provide limited-scope representation, also known as unbundling. This involves giving you advice about your case so you can go to court yourself. You can also ask about reduced fee arrangements. 

If you are low-income, you might qualify for free help from legal aid. You might get free legal advice at a walk-in legal clinic

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