Is my marriage valid because I did not use a judge to marry us?

As a divorce attorney,  we are confronted with situations involving a presumed marital relationship that question the person who conducted the ceremony.   Who is allowed to marry a person in Texas is a common question as a practicing divorce attorney.

Under section 2.202 of the Texas Family Code, a person who is authorized to conduct a marriage ceremony is as follows:

(a) The following persons are authorized to conduct a marriage ceremony:

(1) a licensed or ordained Christian minister or priest;

(2) a Jewish rabbi;

(3) a person who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony;

(4) a justice of the supreme court, judge of the court of criminal appeals, justice of the courts

of appeals, judge of the district, county, and probate courts, judge of the county courts at

law, judge of the courts of domestic relations, judge of the juvenile courts, retired justice

or judge of those courts, justice of the peace, retired justice of the peace, judge of a

municipal court, retired judge of a municipal court, associate judge of a statutory probate

court, retired associate judge of a statutory probate court, associate judge of a county

court at law, retired associate judge of a county court at law, or judge or magistrate of a

federal court of this state; and

(5) a retired judge or magistrate of a federal court of this state.

(b) For the purposes of Subsection (a)(4), a retired judge or justice is a former judge or justice who is vested in the Judicial Retirement System of Texas Plan One or the Judicial Retirement System of Texas Plan Two or who has an aggregate of at least 12 years of service as judge or justice of any type listed in Subsection (a)(4).

(b–1) For the purposes of Subsection (a)(5), a retired judge or magistrate is a former judge or magistrate of a federal court of this state who is fully vested in the Federal Employees Retirement System under 28 U.S.C. Section 371 or 377.

(c) Except as provided by Subsection (d), a person commits an offense if the person knowingly conducts a marriage ceremony without authorization under this section. An offense under this subsection is a Class A misdemeanor.

(d) A person commits an offense if the person knowingly conducts a marriage ceremony of a minor whose marriage is prohibited by law or of a person who by marrying commits an offense under Section 25.01, Penal Code. An offense under this subsection is a felony of the third degree.

What if my marriage license was expired?

(a) On receiving an unexpired marriage license, an authorized person may conduct the marriage

ceremony as provided by this subchapter.

(b) A person may assent to marriage by the appearance of a proxy appointed in the affidavit authorized by Subchapter A if the person is:

(1) a member of the armed forces of the United States stationed in another country in support of combat or another military operation; and

(2) unable to attend the ceremony.

However, there is no specific requirement in Texas for the form of the marriage ceremony itself and no specific language that  must be used.

Is there a waiting period once I get the marriage license?

In Texas there is a 72-hour waiting period under section 2.204 of the Texas Family Code.

However, there are exceptions to the waiting period.

(a) Except as provided by this section, a marriage ceremony may not take place during the 72-hour period immediately following the issuance of the marriage license.

(b) The 72-hour waiting period after issuance of a marriage license does not apply to an applicant who:

(1) is a member of the armed forces of the United States and on active duty;

(2) is not a member of the armed forces of the United States but performs work for the United States Department of Defense as a department employee or under a contract with the department;

(3) obtains a written waiver under Subsection (c); or

(4) completes a premarital education course described by Section 2.013, and who provides to the county clerk a premarital education course completion certificate indicating completion of the premarital education course not more than one year before the date the marriage license application is filed with the clerk.

(c) An applicant may request a judge of a court with jurisdiction in family law cases, a justice of the supreme court, a judge of the court of criminal appeals, a county judge, or a judge of a court of appeals for a written waiver permitting the marriage ceremony to take place during the 72-hour period immediately following the issuance of the marriage license. If the judge finds that there is good cause for the marriage to take place during the period, the judge shall sign the waiver. Notwithstanding any other provision of law, a judge under this section has the authority to sign a waiver under this section.

Is there a penalty for not returning the license?

The person conducting the marriage ceremony must return and record the license with the county clerk as described in the Texas Family Code section 2.206.

(a) The person who conducts a marriage ceremony shall record on the license the date on which and the county in which the ceremony is performed and the person’s name, subscribe the license, and return the license to the county clerk who issued it not later than the 30th day after the date the ceremony is conducted.

(b) A person who fails to comply with this section commits an offense. An offense under this section is a misdemeanor punishable by a fine of not less than $200 and not more than $500.

What if my marriage was conducted after the license expired?

            There is a penalty for a person to conduct a marriage ceremony knowing that the marriage license is expired.

Sec. 2.207. MARRIAGE CONDUCTED AFTER LICENSE EXPIRED; PENALTY

(a) A person who is to conduct a marriage ceremony shall determine whether the license has expired from the county clerk’s endorsement on the license.

(b) A person who conducts a marriage ceremony after the marriage license has expired commits an offense. An offense under this section is a misdemeanor punishable by a fine of not less than $200 and not more than $500.