Can Texas refuse a marriage license to someone behind on child support?

Plain-English summary

In 1995 the Texas Legislature added a child-support check to the marriage-license process. New Family Code section 1.045 required anyone applying for a marriage license to file a sworn statement, witnessed by two credible people, that as of the application date they did not owe delinquent court-ordered child support; knowingly lying on it was a state jail felony. Amended section 1.07(a)(1) told county clerks they could not issue a license unless both applicants provided that statement. Two prosecutors, the Dallas County District Attorney and the Howard County Attorney, asked the Attorney General whether the requirement was constitutional.

The office concluded it was not. The controlling authority was Zablocki v. Redhail, a 1978 U.S. Supreme Court decision that struck down a Wisconsin law barring parents behind on child support from marrying without a court order. The Court in Zablocki held that the right to marry is fundamental, that a law significantly interfering with it gets strict scrutiny, and that the Wisconsin scheme failed because it was not closely tailored to the state's interest in child-support collection. The Texas office walked through the same analysis. The Texas statutes significantly burdened the right to marry: a person who owed delinquent support could not get a license until they paid, someone financially unable to pay was simply shut out of ceremonial marriage, even those who could comply were burdened by having to do so, and a false statement carried criminal penalties.

The office noted one difference from Wisconsin, and explained why it did not save the statute. Wisconsin voided marriages contracted in violation of its law, while Texas does not. Texas recognizes common-law marriage, and a Texas ceremonial marriage stays valid even if the license was obtained illegally (Family Code section 2.02), so a delinquent obligor could still end up legally married. But the office did not think that lessened the burden much, because illegally getting a license exposed the applicant to criminal prosecution under section 1.045(c) and (d), and many couples would not view common-law marriage as an acceptable substitute. Applying strict scrutiny, the office found the statutes were not narrowly tailored: like Wisconsin's law, they blocked marriage without putting any money in the children's hands; the state already had many more effective collection tools (Family Code chapters 157, 158, 231, and 232); and the law was both underinclusive (it did not limit other new financial commitments) and overinclusive (it ignored that a new spouse might improve the applicant's finances). The conclusion was that sections 1.045 and 1.07(a)(1) unnecessarily impinged on the right to marry and violated the Equal Protection Clause.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

This opinion read Family Code sections 1.045 and 1.07(a)(1) as they stood in 1996. The Family Code was extensively recodified the next year, and the section numbers cited here (and the Chapter 14 child-support provisions) have since been renumbered. The opinion's bottom line, that conditioning a marriage license on a child-support oath is unconstitutional under Zablocki v. Redhail, reflects the office's 1996 reading. Verify the current Family Code and current case law before relying on any specific section number or rule here.

What the opinion meant at the time

For people who owed back child support: The opinion meant the office viewed the marriage-license oath requirement as an unconstitutional barrier to marriage. As written, the law would have stopped a delinquent obligor (and especially one who could not afford to pay) from getting a license for a ceremonial marriage, and the office concluded that violated the right to marry.

For county clerks: Section 1.07(a)(1) directed clerks to withhold a license from any applicant who did not provide the section 1.045 statement. The opinion concluded that the underlying requirement was unconstitutional, which bore directly on whether clerks could enforce it.

For prosecutors: Section 1.045 made a knowingly false statement a state jail felony. The opinion's conclusion that the statute violated the Equal Protection Clause went to the validity of the requirement that the criminal penalty was meant to enforce.

For lawyers: The opinion is a straightforward application of the strict-scrutiny framework from Zablocki v. Redhail for laws that significantly interfere with the right to marry, including the holding that the state's child-support-collection interest did not justify the burden because less restrictive and more effective collection tools already existed.

Common questions

Did the Attorney General say Texas could deny a marriage license to someone behind on child support?
No. The office concluded that the law requiring a no-delinquent-child-support oath, and barring a license without it, was unconstitutional. It found the requirement violated the Equal Protection Clause by unnecessarily burdening the right to marry.

What case did the opinion rely on?
Zablocki v. Redhail, 434 U.S. 374 (1978), in which the U.S. Supreme Court struck down a Wisconsin law that prevented parents behind on child support from marrying without a court order. The office concluded Zablocki controlled the Texas question.

Why wasn't collecting child support a good enough reason?
Because the law was not closely tailored to that goal. Following Zablocki, the office noted that blocking a marriage delivers no money to the children, that Texas already had many more effective collection tools (income withholding, license suspension, enforcement proceedings, and the Title IV-D program), and that the statute was both too narrow and too broad to serve the collection interest.

Did it matter that Texas recognizes common-law marriage?
The office considered it but did not think it saved the statute. A Texas ceremonial marriage is valid even if the license was obtained illegally, and common-law marriage was available, so a delinquent obligor could still marry. But getting a license illegally risked criminal prosecution, and many couples would not accept common-law marriage as a substitute, so the burden on the right to marry remained significant.

Background and statutory framework

The 1995 Legislature added the child-support oath to marriage licensing. Section 1.045, enacted by Act of May 26, 1995, 74th Leg., R.S., ch. 655, § 5.04, required a marriage-license applicant to file a statement, witnessed by two credible persons and sworn before a person authorized to administer oaths, that as of the application date the applicant did not owe delinquent court-ordered child support; a payment was "delinquent" if the obligee could seek to enforce an arrearage under Subchapter B, Chapter 14; and a knowingly false statement was a state jail felony. The same act amended section 1.07(a)(1) so that a county clerk could not issue a license if either applicant failed to provide the section 1.045 information.

The constitutional analysis came from Zablocki v. Redhail, 434 U.S. 374 (1978). There the U.S. Supreme Court held that a Wisconsin statute barring child-support obligors from marrying without a court order directly and substantially interfered with the fundamental right to marry and could not survive strict scrutiny; the state's interest in child-support collection did not justify the burden, because the state had other, more effective means, and the law was both underinclusive and overinclusive. The Texas office applied the same framework and reached the same result for sections 1.045 and 1.07(a)(1).

The office also noted Texas marriage law: a marriage license is required for ceremonial marriage (section 1.01), Texas recognizes common-law (informal) marriage (sections 1.91-.95), every marriage is valid unless it is made void or voidable (section 2.01), and the validity of a ceremonial marriage is not affected by fraud, mistake, or illegality in obtaining the license (section 2.02). Texas also had many child-support enforcement tools, including chapters 157 (enforcement of orders), 158 (income withholding), 231 (the Title IV-D program), and 232 (license suspension for failure to pay).

Citations

Constitutional and statutory provisions discussed:

• U.S. Const. amend. XIV (Equal Protection Clause)
• Family Code section 1.045 (sworn statement that applicant does not owe delinquent court-ordered child support; false statement a state jail felony), enacted by Act of May 26, 1995, 74th Leg., R.S., ch. 655, § 5.04
• Family Code section 1.07(a)(1) (county clerk may not issue a marriage license absent the section 1.045 statement), as amended by the same act, § 5.05
• Family Code section 1.01 (license required for ceremonial marriage); sections 1.91-.95 (informal/common-law marriage); section 2.01 (marriages valid unless void or voidable); section 2.02 (validity of ceremonial marriage unaffected by fraud, mistake, or illegality in obtaining the license)
• Family Code Subchapter B, Chapter 14 (enforcement of child-support arrearages); chapters 157, 158, 231, and 232 (child-support enforcement tools)

Cases discussed:

• Zablocki v. Redhail, 434 U.S. 374 (1978)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0384
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0384.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, and the original's footnotes were not captured in the text extraction — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

April 19, 1996

The Honorable John Vance
Dallas County District Attorney
411 Elm Street
Dallas, Texas 75202

The Honorable Hardy L. Wilkerson
Howard County Attorney
P.O. Box 2096
Big Spring, Texas 79721

Opinion No. DM-384

Re: Whether sections 1.045 and 1.07(a)(1) of the Family Code, requiring an applicant for a marriage license to state under oath that he or she does not owe delinquent court-ordered child support, violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution (RQ-862)

Dear Mr. Vance and Mr. Wilkerson:

You ask about the constitutionality of sections 1.045 and 1.07(a)(1) of the Family Code. These provisions require an applicant for a marriage license to submit a sworn statement that he or she does not owe delinquent court-ordered child support. Newly enacted section 1.045 provides as follows:

(a) An applicant for a marriage license shall submit to the county clerk a statement witnessed by two credible persons and verified before a person authorized to administer oaths that as of the date the application for a marriage license is filed the applicant does not owe delinquent court-ordered child support.

(b) A child support payment is considered delinquent for purposes of Subsection (a) if the child support obligee under a child support order that applies to the applicant is entitled to seek enforcement of an arrearage under Subchapter B, Chapter 14.

(c) A person commits an offense if, with intent to deceive and with knowledge of the statement's meaning, the person submits a false statement under this section.

(d) An offense under this section is a state jail felony.

Act of May 26, 1995, 74th Leg., R.S., ch. 655, § 5.04, 1995 Tex. Sess. Law Serv. 3543, 3559. At the same time the legislature enacted the foregoing provision, it also amended section 1.07(a)(1) of the Family Code, which establishes the conditions under which a county clerk may issue a marriage license. Id. § 5.05. That section now provides that a county clerk may not issue a marriage license if either applicant fails to provide the information required by section 1.045. See Fam. Code § 1.07(a)(1).

You express concern that the foregoing provisions violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, citing Zablocki v. Redhail, 434 U.S. 374 (1978). In that case, the United States Supreme Court considered the constitutionality of a Wisconsin statute that prohibited certain persons, namely every Wisconsin resident "having minor issue not in his custody and which he is under obligation to support by any court order or judgment," from obtaining a marriage license without a court order. Id. at 375 & n.1. The statute provided that a court order giving permission could be granted only if the marriage applicant submitted proof of compliance with the support obligation and demonstrated that the children covered by the order "[were] not then and [were] not likely thereafter to become public charges." Id. The opinion of the Court, after ruling that the right to marry is fundamental, id. at 383-86, concluded that the statute directly and substantially interfered with that fundamental right and was therefore subject to strict scrutiny under the Equal Protection Clause, id. at 388. We believe a court faced with a constitutional challenge to the foregoing Texas statutes would conclude that Zablocki controls and would thus consider whether the statutes significantly interfere with the right to marry and, if so, whether they survive strict scrutiny.

In Zablocki, the Court recognized that reasonable state regulations that do not significantly interfere with decisions to enter into marriage may legitimately be imposed, but held that the statute at issue interfered "directly and substantially with the right to marry," id. at 387, for the following reasons:

Under the challenged statute, no Wisconsin resident in the affected class may marry in Wisconsin or elsewhere without a court order, and marriages contracted in violation of the statute are both void and punishable as criminal offenses. Some of those in the affected class . . . will never be able to obtain the necessary court order, because they either lack the financial means to meet their support obligations or cannot prove that their children will not become public charges. These persons are absolutely prohibited from getting married. Many others, able in theory to satisfy the statute's requirements, will be sufficiently burdened by having to do so that they will in effect be coerced into forgoing their right to marry. And even those who can be persuaded to meet the statute's requirements suffer a serious intrusion into their freedom of choice in an area in which we have held such freedom to be fundamental.

Id.

We believe it is very likely that a court considering a constitutional challenge to the Texas statutes would similarly conclude that they burden a fundamental right. Under the statutes, no person may obtain a marriage license in Texas without submitting the sworn statement to the county clerk. A person who submits a false statement is subject to criminal penalties. Persons who owe delinquent court-ordered child support will be unable to obtain a marriage license until they have paid their child support obligations. Those who are financially unable to meet their child support obligations will not be able to submit such a statement and therefore will be precluded from entering into ceremonial marriage. "Many others, able in theory to satisfy the statute's requirements, will be sufficiently burdened by having to do so that they will in effect be coerced into forgoing their right to marry." Id.

There is a significant difference between the Wisconsin statute and the Texas statutory scheme that we believe a court would consider. The Wisconsin statute provided that marriages contracted in violation of the statute were void. In this state, a marriage license is required for ceremonial marriage. See Fam. Code § 1.01. This state, however, recognizes common-law marriage, which may, but need not, be evidenced by declaration of informal marriage. Id. §§ 1.91-.95. Every marriage entered into in Texas is considered valid unless it is made void by law or is made voidable by law and is annulled. Id. § 2.01. The fact that a party to a marriage makes a false statement under section 1.045 of the Family Code does not make the marriage void or voidable. Moreover, the validity of a ceremonial marriage is not affected by any fraud, mistake, or illegality that occurred in obtaining the marriage license. Id. § 2.02.

Therefore, unlike the Wisconsin statute, the Texas statutes do not absolutely preclude a person who owes delinquent court-ordered child support from entering into a legally valid marriage. He or she may do so by obtaining a marriage license in violation of section 1.045 and entering into a ceremonial marriage (which will be valid despite the illegality, see id.), or entering into a common-law marriage with or without filing a declaration of informal marriage. We do not believe that a court would necessarily conclude on the basis of this fact, however, that the Texas statutes impose any less significant burden on the right to marry. A person who illegally obtains a marriage license would be subject to criminal prosecution under subsections (c) and (d) of section 1.045. Furthermore, many couples, for religious or other deeply held personal reasons, may not view common-law marriage as an option.

Assuming that a court were to conclude that sections 1.045 and 1.07(a)(1) burden a fundamental right, it would then consider the state's interests:

When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.

Zablocki, 434 U.S. at 388. The state of Wisconsin asserted that the statute at issue in Zablocki served two interests: "the permission-to-marry proceeding furnishes an opportunity to counsel the applicant as to the necessity of fulfilling his prior support obligations; and the welfare of the out-of-custody children is protected." Id. The Court assumed that these interests were legitimate and substantial, but concluded that the statute "cannot be justified on the basis of the means selected by the State for achieving these interests if those means unnecessarily impinge on the right to marry." Id. There was no evidence that the statute was designed to further the first interest. See id. at 388-89. With respect to the second interest, the Court concluded that the "collection device" rationale could not justify the statute's broad infringement on the right to marry for the following reasons:

First, with respect to individuals who are unable to meet the statutory requirements, the statute merely prevents the applicant from getting married, without delivering any money at all into the hands of the applicant's prior children. More importantly, regardless of the applicant's ability or willingness to meet the statutory requirements, the State already has numerous other means for exacting compliance with support obligations, means that are at least as effective as the instant statute's, and yet do not impinge upon the right to marry [including wage assignment, civil contempt proceedings, and criminal penalties].

Id. at 389-90. The Court also dismissed the suggestion that the statute protected the ability of applicants to meet support obligations by preventing them from incurring new support obligations:

[T]he challenged provisions . . . are grossly underinclusive with respect to this purpose, since they do not limit in any way new financial commitments by the applicant other than those arising out of the contemplated marriage. The statutory classification is substantially overinclusive as well: Given the possibility that the new spouse will actually better the applicant's financial situation by contributing income from a job or otherwise, the statute in many cases may prevent affected individuals from improving their ability to satisfy their prior support obligations.

Id. at 390.

We assume the legislature enacted section 1.045 and amended section 1.07(a)(1) in order to protect the economic interests of marriage applicants' prior children by ensuring the payment of support obligations and preventing delinquent obligors from incurring new child support obligations. It is very likely that a court applying the standard articulated in Zablocki would determine that the Texas statutes are not narrowly tailored to achieve only those interests. Like the Wisconsin statute, the Texas statutes merely preclude a marriage license applicant who is delinquent from entering into ceremonial marriage, without obtaining funds for the applicant's prior children. Furthermore, the state of Texas, like the state of Wisconsin, has many more effective means of enforcing court-ordered child support. See, e.g., Fam. Code chs. 157 (enforcement of child support orders), 158 (withholding from earnings for child support), 231 (Title IV-D program), 232 (suspension of license for failure to pay child support). The Texas statutes also suffer the same defects as the Wisconsin statute with respect to the goal of preventing delinquent child support obligors from incurring new child support obligations: they do not limit in any way new financial commitments by an applicant other than those arising out of the contemplated ceremonial marriage, nor do they take into account the possibility that the new spouse will actually better the applicant's financial situation by contributing income, thus improving the applicant's ability to satisfy prior support obligations. For these reasons, it is the opinion of this office that sections 1.045 and 1.07(a)(1) of the Family Code unnecessarily impinge on the right to marry and therefore violate the Equal Protection Clause.

SUMMARY

Family Code sections 1.045 and 1.07(a)(1), requiring an applicant for a marriage license to state under oath that he or she does not owe delinquent court-ordered child support, unnecessarily impinge on the right to marry and therefore violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee