William T. Elliott - Page 6

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          Texas.  Respondent's position is that their "common law" marriage           
          does not comport with the requirements of the statute.                      
               Section 2.401 of the Texas Family Code provides a three part           
          conjunctive test to determine if a man and a woman are in a valid           
          "common law" marriage.  The third part of the "common law" test             
          requires the couple to hold themselves out to others as though              
          they were married.  Tex. Fam. Code Ann. sec. 2.401 (Vernon 2002).           
          In McChesney v. Johnson, 79 S.W.2d 658, 659 (Tex. Civ. App. 1934)           
          the court stated that "the agreement is fundamental and                     
          cohabitation is an element, but the holding out to the public as            
          being man and wife is the acid test."  A couple's conduct and               
          actions alone are sufficient to satisfy this element; whereas               
          spoken words are not necessary to establish marital status.                 
          Winfield v. Renfro, 821 S.W.2d 640, 648 (Tex. App. 1991).  When             
          questioned by respondent's counsel whether she held herself out             
          to others as being married to petitioner, Ms. Huff testified that           
          she did not hold herself out to third parties, or tell anyone,              
          that she and petitioner were married.                                       
               The Court finds, therefore, that petitioner was not married,           
          common law or otherwise, to Ms. Huff in 2000.  As a result, the             
          Court also finds that Ashton and Marquin, for purposes of section           
          32, were not petitioner's stepchildren.  Because petitioner has             
          not established that Ashton or Marquin met the relationship test            








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