What to do if a child was born during a possible common law marriage?

UPDATED: Jan 21, 2011

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What to do if a child was born during a possible common law marriage?

I was with a man for 7 years. We lived together, had a child, filed as married, etc. In 2007 he and I separated for 3 months. I had a relationship with someone else and became pregnant but by the time I found out I had reconciled with the first man. In 08/10 I left and married the man I had a short relationship with and put him on my child’s birth certificate. The first man had no knowledge of this and he had always claimed my youngest daughter as his. Should he have signed the denial of paternity before I put my current husband on her birth certificate? Does he have legal rights to my daughter according to the Acknowledgement of Paternity (“AOP”) law? Also, is my current marriage legal?

Asked on January 21, 2011 under Family Law, Texas


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

You have 2 major issues here - the validity of your current marriage, and the paternity of your youngest child.  The outcome of both will hinge on whether or not you had a valid common law marriage in TX law.   The length of time that you were together is not has instrumental in proving a CL marriage as is the fact that you filed tax returns together and possibly otherwise held yourselves out as husband and wife.  You need to consult directly with a divorce/family law attorney ASAP.

If you were not married at CL, you appear to have no problem with respect to either issue; you should be in the clear legally.  However, if you had a valid CL marriage, then you really need to consult with an attorney ASAP.  Even with a CL marriage, before someone can remarry they must first obtain a divorce.  Additionally, if a woman is married and gives birth, the law presumes that the husband is the child's father.  Again, you need to consult with a lawyer in your area.

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