Tag: Common Law Marriage

The Many Parts of a Texas Divorce

In a previous post, we discussed the procedural parts of a Texas Divorce. In this post, the goal is to identify the substantive parts of a Texas Divorce.

Divorces are interesting types of cases, because unlike most cases, they have discrete parts, each of which needs their own jurisdictional analysis. That is, a court may have the power to deal with one part of the case, but not with another.

Not all cases are the same, so some of these parts may not be present in your case, but since there is a great deal of misunderstanding about how divorces work, it is a good idea to at least be aware of them, to be sure that they don’t belong in your case.

1. The Status of the Marriage

The Status of the Marriage is both the most important and least important part of the case – it is the judicial determination of whether the parties are divorced. As long as one or both parties is a resident of Texas, the court generally has the power to make this determination. Since Texas is a “no-fault” State, the court can grant the divorce without reference to either party being at fault. But, either or both parties can allege that the divorce should be granted on “fault” grounds, such as adultery or cruelty.

2. Division of Property

This part of the case involves how the marital estate is divided. The court does not have the power to take either party’s separate property as a part of the division of property. The court does have the power to divide the community estate, as long as the court has personal jurisdiction over the parties. Understanding personal jurisdiction can be tricky, so if either party does not reside in Texas, it is important to get competent legal advice on this topic.

As a part of the division of property, the court may assign the payment of debts, but it is important to note that the court cannot adversely affect the rights of third-party creditors. That is, if the creditor could sue you before the divorce if the debt was not paid, then the creditor will be able to sue you after the marriage if the debt is not paid – there is nothing you can agree to or that the court can order that can change that.

3. Custody

Custody is a legal word with a fuzzy definition. Basically, if there has been a child born or adopted during the marriage that is still a minor or disabled, or both, the court will need to deal with issues of conservatorship, geographic restriction, rights, duties, and possession of the child.

There are a great many presumptions that aid in the predictability of this section, but unlike property division, a jury can be used to decide the ultimate issues of custody, i.e. Primary Conservatorship and Geographic Restriction.

The analysis of whether the Court has the power to issue a valid, binding custody order can be very confusing. The answers are found in a complicated piece of legislation known as the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”).

4. Child Support

Although often even courts treat Child Support as though it is a simple mathematical analysis, under the family code it is not. The statutory presumption is that guideline child support should be used, but there are a great many other factors that the court should consider.

See this previous post for a discussion of those other factors.

5. Spousal Maintenance

Texas has had contractual alimony available for a long time, if not forever. Contractual alimony, however, is only obtained when one party or the other agrees to provide cash flow to the other after divorce.

Spousal Maintenance is the term that is used for the type of post-divorce, non-child-support, non-property division payments that the court can order over the objection of the soon-to-be-paying party. In order to get Spousal Maintenance, the party seeking it must prove a great many things, but the starting point is that he or she must fit in one of three categories:

  1. Be disabled;
  2. Be the victim of domestic abuse; or
  3. Be married for over ten years and not be able to provide for his or her minimum reasonable needs.

6.Tort or Other Cause of Action Against Your Spouse

Although many people don’t realize it, you can sue your spouse, in addition to divorcing him or her. To do so successfully, there must be a valid cause of action. That is, the spouse must have done something that amounts to a Tort or other type of cause of action.

Viable causes of action include assault, battery, false imprisonment, breach of fiduciary duty, and intentional infliction of emotional distress (also known as intentional infliction of mental anguish).

Whether one spouse should sue the other is a very complicated question, and competent legal advice is critical in making a decision on how to proceed.

To discuss your case with the attorneys of the Beal Law Firm, call us at 817.261.4333 or 214.414.0418, or write us at lawyers@dfwdivorce.com. You can find us on the web at www.dfwdivorce.com.

Common Law Marriage: How do I know if I have one?

In Texas, there are two ways to get married, and two ways to get unmarried. You can be ceremonially married or common law married. To get unmarried – regardless of how you got married – you need a divorce or death.

There is no such thing as a common law divorce.

There are circumstances that would seem to warrant a finding of common law divorce, but they don’t. For example, if two married persons cease living together, haven’t seen each other in a couple of decades, haven’t spoken to or communicated with each other in decades, and have no property which they consider joint, many people would feel that their status is tantamount to divorce. It’s not.

Once again, there is no such thing as common law divorce.

So, it’s best to know when you are married, since being married means that everything you own is presumed to be community property, if you die or end up in a divorce.

A common law marriage arises when three things have happened:

  1. The two people live together;
  2. The two people represent to others that they are married; and
  3. Both people have agreed to be married.

Think of people living 100 years ago out in the remotest part of west Texas. There had to be a way for them to get married, since having sexual relations or living “in sin,” without the benefit of marriage, was considered taboo.

Common law marriage provided people that did not have a preacher or courthouse handy a way to make themselves “legal.”

It all made sense back then. Whether it does now is a question for another day. Regardless, the law still exists.

If you live together, even for a brief period of time, and represent to others that you are married – by, for example, introducing the other person as your wife to new people you meet, filing joint tax returns, etc. – then the only question is whether the two of you have agreed that you are married.

If neither person claims that there was an agreement of marriage, the issue may never arise. In family court, however, the problem can arise when the couple breaks up, if the first two requirements have been met. Then, the one that would most benefit from a finding that they are married sometimes claims that they are.

If the court is convinced that all three requirements have been met, then the break up becomes a divorce. And divorces have all sorts of consequences with respect to division of property, spousal maintenance, etc.

To discuss any of this with a Beal Law Firm attorney contact us at lawyers@dfwdivorce or call us at 214.414.0418 or 817.261.4333. Our website is www.dfwdivorce.com

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