Legal Question in Family Law in Texas

That's an interesting and open question in Texas. Did the Supreme Court's ruling in Obergefell mean that same-sex couples who met the requirements BEFORE Obergefell can use their pre-Obergefell facts to establish common law marriage in a state that did not recognize marriage between same-sex couples prior to Obergefell?

Depending on your facts, you may not have to be the test case for that question. In Texas, we don't really have common law marriage. What we have is "Informal Marriage" that is defined by a statute and it is clear about what it takes to establish an informal marriage:

(1) The couple has to have agreed to life together as a married couple;

(2) The couple has to have actually lived together in Texas as a married couple; AND

(3) The couple has to have held out to others that they were married.

#2 is easy to establish and if #2 exists, it's not much of an inferential leap to assume that #1 is satisfied. #3 is the hard one.

But note that there is no minimum amount of time required. So if there are facts tending to support all three elements of an Informal Marriage and those facts came into existence AFTER Obergefell, then you don't have to worry about creating new law.

What I mean by that is that if you satisfied all three elements 12 years ago, who knows if Obergefell requires the court to find the existence of an informal marriage? But even though you've been together for 12 years, if you have recent facts that could be used to prove all three elements, then you have a simpler case because the same-sex-ness of the relationship is legally irrelevant.

If you're trying to establish the existence of an informal marriage for government benefits, then my analysis above may bring legal comfort to you.

However, if you're trying to establish the existence of a marriage prior to Obergefell because you need that earlier date in order to obtain valuable property rights, then you may have to take on the more difficult case of convincing a court that Obergefell means that even very old relationships between same-sex partners are eligible for equal treatment. For example, if you moved in together 12 years ago and one of you bought a house the next year, whether that house is community property would turn on whether the court agrees that a marriage between people of the same sex could have arisen prior to the Supreme Court's decision.

At the trial court level, there are certain counties that I would expect to be more amenable to finding a 12 year old informal marriage than other counties . . .