Thursday, February 15, 2007

your questions answered (or at least some of them)

“I have a question: There is a steak dinner on the line. How many times can you get married in the state of Texas? thank you-“

As many times as you can afford. If you give up fifty percent of your estate every time you get divorced, eventually you wont have enough money to get the marriage license….so maybe there is a limit! Hmmmm.

Of course it took me so long to respond that I fear the steak turned into beef jerky. Sorry.

"I have a question more so than a comment. I know a young soldier that got back from Iraq and was dating a female before he left for his duty. When he was away she found his check book and wrote check (good/bad), and claimed that they were married. He is trying to obtain is losses from her, but it seems that the "Informal Marriage" law is working in her favor. What can he do to clear his name and this matter. -Helpless Friend"

Hire a lawyer, and tell him to quit letting his girlfriends live with him. Smile.

"Chris, I am an attorney too. I have an interesting situation shaping up in probate court. An ex wife will be claiming that she and decedent were common law married at the time of his death (apparently based primarily on the fact that they remained friendly and he spent a few nights at her house). I think that the deadman's statute Evidence 601(b) should preclude her from trying to show his intent. Any thoughts?"

I agree with your evidentiary argument, but I am not sure intent will matter. She will have to establish that she meets ALL the criteria. It sounds like she will have a hard time proving that they cohabitated. Staying over a few nights is not even remotely close to cohabitating. Second, she will need to produce witnesses that say they held themselves out as married…and you can produce witnesses that say they didn’t. If she overcomes these, then you may need to argue about intent, etc…with regard to the “agreement” to be married.

If you get this post, keep me up to date with what happened.

"I am new to this Blogging thing but I really have a huge question about family law and my research took me to your blog. I have joint custody with my son's father. That was established in 98', now 2007 I want full custody of my son. The father has been in and out of jail for not paying child support. He's a truck driver that has no real schedule. His wife would pick up my son when he wasn't home so I was sharing custody with my son's step mother instead of him. Now the father says that he and his wife are getting a divorce but they are still living in the same home until other living arrangements can be made. If he goes through with the divorce or separation, how can I get full custody of my son since he's hardly ever in the same city as we live in? Stacey"

Stacey, there is just too much I don’t know to be able to answer your question (or not answer it). My suggestion is that you log onto and find a family attorney in your area. They also have a service called Legal Connection that can match you up with a lawyer. Good luck.

"Since it says that you can’t get married again within 30 days of divorcing.....I'm wondering what if you were divorced on say the 2nd of Dec. then married someone else on the 9th of Dec. in another state and both of you still reside in Texas Is that marriage valid?"

I had another questions similar to this. To be honest, I really don’t know the answer to this question without doing some research (which I would be happy to do for a small feeJ)

I suggest that you read my earlier posts with regard to voidable and void marriages and see if you can find the answer in there. Voidable marriages can be fixed, but void cannot.

"If you have a void marriage do you still have to wait the mandatory 60 days after filing."

Not if you file a petition to declare marriage void. You can finalize it as quickly as you can complete the paperwork.

"If a man marries someone knowing while still married to someone else does the second marriage become void or does there have to be an annulment? If so, do the same guidelines apply to annulment as they do to divorce in Texas (i.e. the 60 waiting period after filing)? "

The second marriage is void and you have to file a petition to declare the marriage void. IT IS NOT AN ANNULMENT. There is no 60 day waiting period to finalize and annulment or a suit to declare marriage void.

This type of void marriage can be fixed however….just get the first marriage terminated and continue to live together as man and wife and hold yourself out as same. Voila, you are married.

"Is it possible to have a religious ceremony to "bless" an informal or common law marriage in Texas? I know some states, clergy is not allowed to perform the ceremony w/o a marriage license and w/o filing it. What is the case in Texas? "

Isn’t this really a question for the church? If they can, then you can…if they can’t then no, you cannot.

"Great site Chris. I also wanted to ask about obtaining divorce without a lawyer (don't worry--they won't go extinct). However this is for the more complicated case with a child in the mix. My wife and I are both PhDs with the same income and assets. We know exactly what we want, which is a 6/7 custodial arrangement (child spends 6 days with wife, one with me), equal division of assets (retaining joint ownership of real estate), and child support equal to 6/7 15% of my net income. Seems like since we know what we want we should just be able to file on our own (using one of the better interview-driven software kits). My wife and I work very well together negotiating these things. Comments? Perhaps a blog entry? -Thom "

Great idea Thom…I think I will try to post a blog segment on performing your own divorce in Texas. The problem you may run into is the “better interview-driven software kits”. I have never seen one that is any good. However, if you get along with your spouse now AND in the future then you should not have problems with her.

You need to make sure however that you meet all the court’s requirements. I would suggest calling the court where you would file and see if they have any pre-printed packets regarding pro se (represent yourself) divorces. They cannot give you legal advice, but sometimes that have a list of procedures.

"If I am about to try to prove my marriage was a valid informal marriage. Do me and my husband have to come to court if we have broken up? It has been way less than two years since we broke up. "

No, he does not have to be there if he waives being served and enters his appearance in that waiver. If he doesn’t then he is entitled to notice of the lawsuit and the hearing and may have to be there.

Get yourself a lawyer and they can help you through all of this.

"Chris, what happens in the case where a couple realize their marriage is void, they don't have kids and they don't also own any property, and they left the marriage immediately they realized the marriage was void, do they still need to go to court to declaration the marriage void. What happened was one of the parties thought his divorce was final when it actually wasn’t."

Well if there is no property and no kids, then I guess not. As far as Texas is concerned there is no marriage. Did you have a marriage certificate, ceremony, etc… If yes, you may have to have a proceeding because there is paper out there that could cause confusion down the road…again.
See above post for how to fix this situation…if you want to.

"Could you write some about custody? Do you have any advice (other than 'get real') for a father who is trying to get at least 50% custody of his kids? Both parents are good parents, and the father is very active in his children's upbringing - which is why I would like to see a 50/50 custody arrangement. Oh, and is there anything the father can do that would keep the mother from moving 100 miles (and 3 counties) away from the original place of residence with the kids? Thanks, and Happy Holidays "

I will try and get to custody eventually, but that is a HUGE subject and each case is really different determined by the facts of that specific case.

Yes, there is something you can do to keep her from moving…get a lawyer, file a lawsuit and ask for a residency restriction.

"Have a dilemma in Lubbock Texas. I have a child support order that the ex refuses to pay. She has never worked and never plans to really so I can’t garnish wages. The judgment is 8 years old and the obligor has remarried to a man with a successful business. Can I enforce this child support judgment against any of the obligor’s spouses assets or income since Texas is a community property state. If so I will have to do it soon because the child turns 17 in less than a year and I know the State Child Support Enforcement Agency will still be bogged up in government red tape with my daughter left out in the cold. Secondly will I, or can I renew it before the expiration date like a standard Judgment if I need more time to follow through on enforcing it myself? any help is greatly appreciated, Rick "

You do have a dilemma….you live in Lubbock! Kidding, I went to law school there. Yes, you can sue her for the back amounts. As long as you have an order, she is obligated to pay the court ordered amount every month, regardless of if she has a job or not. You would simply file a motion for enforcement by contempt.

Once filed and served, she would be ordered to appear. She can claim that she was unemployed if she likes, but that is only one piece of the puzzle. She also has to prove that she could not borrow the funds, nor knew of any source to get the funds. Sounds to me like she has plenty of funds she could have gotten her hands on. Courts aren’t stupid and typically do not buy the poverty argument. She could have gotten job couldn’t she? She is not disabled, correct?

As far as the limitations on filing…go to my website, click on the resources link, click on the Texas Family Code link, and look at §157.005.

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!


Anonymous said...

Hi Chris,
I am divorced, managing conservator of our 3 year old son, and I have a distance restriction clause in my divorce order. My current husband has a very specific career (photojournalist), and it is difficult for him to find a job nearby. He has a very promising job offer in east Texas, and we live in Austin. Is it difficult to get this restriction lifted under these circumstances? Thank you!

Chris Schmiedeke said...

That is impossible to answer as a lot of times it depends on the specific judge's attitudes. Some people in your scenario are allowed to move and some are not.

The best advise I can give you is to retain a lawyer and try.

Stealth said...

LOL! Sorry I didn't mean to laugh at the Lubbock thing but you typed what I was thinking...

Have a good Father's Day next weekend :)

deborah said...