Texas Divorce Tips
One divorce attorney's reactions to family law issues.
Monday, March 30, 2009
Question from Seminary #4
Last month I was asked to speak to the counseling class at Dallas Theological Seminary. Here's one of the questions they submitted in writing:
What constitutes a common law marriage in Texas? Time together? mailing address? Are they any harder/easier to dissolve in a divorce?
See Sec. 2.401 of the Texas Family Code, referring to "informal marriage". It requires an "intent" to be married (such as a marriage ceremony where it turned out the judge or preacher really wasn't a judge or preacher), "representation" to others that you are married (meet my wife), and "cohabitation" with no specific duration required. I guess it could be as simple as the bartender pronouncing you man and wife, then at the hotel you register as Mr. and Mrs.
First, this doesn't come up very often. Usually if a couple shacks up then moves on, they don't bother trying to establish a marriage. Even if there are kids, it's easiest and cleanest to deal with this as a paternity suit instead of proving a marriage and then doing a divorce. But there are two contexts in which it does come up.
In a wrongful death suit, the widow/widower claims a marriage existed so as to claim money the "spouse" would have earned as community property. That is, in a couple who were not formally married, the husband is killed on the job, such as on an offshore drilling rig, and the "wife" needs to prove that they were married (informally) so that she can get wrongful death benefits from the insurance company. These are generally much easier to prove, partly because the main person who could disprove the marriage is dead, and partly because it can be really messy trying to claim in a jury trial that the insurance company shouldn't have to pay up because the widow/widower wasn't sufficiently married to the deceased.
In another context, sometimes one party to an "informal" marriage wants to prove the marriage exists in order to get divorced to get a share of community property (if the parties weren't married, then there is no community property). Classic example: man and woman shack up, and wife buys a winning lottery ticket. Is the jackpot community property? In these cases, the courts have adopted a fairly strict requirement of "attempted marriage" out of policy concerns. In order to obtain the benefits of marriage, one must really be married, or have reasonably thought that they were married, instead of simply finding it convenient to now state that they were married. So, for wife to get a share of husband's lottery ticket, she'll be arguing that they really attempted to get married, and husband will be arguing that if they had meant to be married, they would have followed through and done it legally.
What constitutes a common law marriage in Texas? Time together? mailing address? Are they any harder/easier to dissolve in a divorce?
See Sec. 2.401 of the Texas Family Code, referring to "informal marriage". It requires an "intent" to be married (such as a marriage ceremony where it turned out the judge or preacher really wasn't a judge or preacher), "representation" to others that you are married (meet my wife), and "cohabitation" with no specific duration required. I guess it could be as simple as the bartender pronouncing you man and wife, then at the hotel you register as Mr. and Mrs.
First, this doesn't come up very often. Usually if a couple shacks up then moves on, they don't bother trying to establish a marriage. Even if there are kids, it's easiest and cleanest to deal with this as a paternity suit instead of proving a marriage and then doing a divorce. But there are two contexts in which it does come up.
In a wrongful death suit, the widow/widower claims a marriage existed so as to claim money the "spouse" would have earned as community property. That is, in a couple who were not formally married, the husband is killed on the job, such as on an offshore drilling rig, and the "wife" needs to prove that they were married (informally) so that she can get wrongful death benefits from the insurance company. These are generally much easier to prove, partly because the main person who could disprove the marriage is dead, and partly because it can be really messy trying to claim in a jury trial that the insurance company shouldn't have to pay up because the widow/widower wasn't sufficiently married to the deceased.
In another context, sometimes one party to an "informal" marriage wants to prove the marriage exists in order to get divorced to get a share of community property (if the parties weren't married, then there is no community property). Classic example: man and woman shack up, and wife buys a winning lottery ticket. Is the jackpot community property? In these cases, the courts have adopted a fairly strict requirement of "attempted marriage" out of policy concerns. In order to obtain the benefits of marriage, one must really be married, or have reasonably thought that they were married, instead of simply finding it convenient to now state that they were married. So, for wife to get a share of husband's lottery ticket, she'll be arguing that they really attempted to get married, and husband will be arguing that if they had meant to be married, they would have followed through and done it legally.
posted by Hal Davis | 5:59 AM
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