i’m a slacker!
For anybody out there that reads my blog on any consistent basis, I apologize for being such a slacker. It has been so busy around here that I have not had time to post in a while (excuse).
If anybody out there has specific questions, please feel free to fire away. Also, if anybody has ideas they would like talked about in the blog, let me know. Perhaps some fresh ideas will put a spark under my a$# to keep this thing up to date. It seems the whole Texas Family Code thing is getting a little boring for me.
Thursday, December 07, 2006
Thursday, September 14, 2006
maintenance
maintenance (a.k.a. spousal support) in Texas divorces and can I get me some?
Okay, today we are going to talk about spousal maintenance or spousal support. This issue comes up all the time in divorce situations. It is not a direct question like “can I get spousal support” as much as it is “how can I survive if I leave my spouse”.
Maintenance is defined in §8.001 of the Texas Family Code as an award in a divorce, annulment or suit to declare a marriage void of periodic payments from the future income of one spouse for the support of the other spouse.
Maintenance is not designed to divide property, allocate debt, or to punish a party, it is simply a band aid designed to help a spouse (after divorce) to get on his/her feet. For that reason, the legislature has made it applicable in only certain situations and for a limited period of time.
Under §8.003 of the Texas Family Code, the court may order maintenance only if:
For a list of the factors that the court considers in answering the many questions you may be asking yourself about the requirements above, see §8.052 of the Texas Family Code.
There is a presumption AGAINST spousal support unless the spouse has a physical or mental disability or can prove to the court (thereby overcoming the presumption) that the spouse has done all they can to find suitable employment or develop the skills necessary to get that employment but was unable to find employment. This presumption also does not apply to the parent with custody of a child with a mental or physical disability as discussed above.
A court cannot order support for longer than three years, but as I stated above, is to limit it to the shortest amount of time possible. If there is a mental or physical disability involved to the spouse or the child of the spouse, the time is indefinite and the court has discretion in the length of time the court will order support. Ay disability is subject to future court review and must continue during the time the support is provided.
How much can the court order? The court cannot order more than the lesser of $2,500 or 20 percent of the spouse’s average monthly gross income. I will not get into how that is calculated here. If you are in a situation where you need to calculate this, call a lawyer.
When does it end? When either spouse dies, when the parties remarry (yeah, right), or if the party receiving support COHABITS WITH ANOTHER PERSON IN A PERMANENT PLACE OF ABODE ON A CONTINUING CONJUGAL BASIS. I capitalized this because it is the one that will arise most often. What it means would have to be determined on case by case basis by the judge. There are probably a million different scenarios with a million different answers to this one.
There are two additional types of alimony or support that I did not discuss above. The first is temporary support that the court orders while the case is pending. Anybody can qualify for this, provided that the evidence is there to overcome the presumption discussed above. So, a person married less than 10 years can qualify for temporary support while the case is pending, but will not get spousal support after the divorce (unless some other provision qualifies them for it).
The other type is called contractual alimony and involves an agreement or “contract” between the parties to certain future payments to a spouse after the divorce. Bottom line, regardless of the length of marriage, etc…the parties are free to agree on contractual alimony under any terms they like. The big difference between this and the spousal maintenance or support discussed above is the enforceability of the order. Without getting too detailed, contractual alimony is considered a debt, and in Texas you cannot be put in jail for failure to pay a debt. Spousal maintenance or temporary spousal support is not a debt and therefore the spouse not paying as ordered could potentially be put in jail for contempt of court. If you need further analysis of this point, you really need to contact a lawyer because it is somewhat of a tricky issue in determining which you have or are thinking of agreeing to.
Until next time....
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!
Okay, today we are going to talk about spousal maintenance or spousal support. This issue comes up all the time in divorce situations. It is not a direct question like “can I get spousal support” as much as it is “how can I survive if I leave my spouse”.
Maintenance is defined in §8.001 of the Texas Family Code as an award in a divorce, annulment or suit to declare a marriage void of periodic payments from the future income of one spouse for the support of the other spouse.
Maintenance is not designed to divide property, allocate debt, or to punish a party, it is simply a band aid designed to help a spouse (after divorce) to get on his/her feet. For that reason, the legislature has made it applicable in only certain situations and for a limited period of time.
Under §8.003 of the Texas Family Code, the court may order maintenance only if:
- The spouse from whom payment is sought was convicted (including deferred adjudication) for a criminal offense involving family violence AND the offense occurred within two years of the date that the request for divorce, annulment, etc…was filed OR it occurred while the divorce was pending; or
- The marriage was in excess of 10 years AND
- The spouse seeking support lacks sufficient property, including property divided by the Family Code (i.e. by the judge) to provide minimum reasonable needs, AND
- Is unable to support himself/herself because of a physical or mental disability OR is the custodian of a child with a physical or mental disability that requires that parent to stay home with the child (of any age) OR the spouse lacks the earning ability in the labor market to provide the minimum needs for that spouse.
For a list of the factors that the court considers in answering the many questions you may be asking yourself about the requirements above, see §8.052 of the Texas Family Code.
There is a presumption AGAINST spousal support unless the spouse has a physical or mental disability or can prove to the court (thereby overcoming the presumption) that the spouse has done all they can to find suitable employment or develop the skills necessary to get that employment but was unable to find employment. This presumption also does not apply to the parent with custody of a child with a mental or physical disability as discussed above.
A court cannot order support for longer than three years, but as I stated above, is to limit it to the shortest amount of time possible. If there is a mental or physical disability involved to the spouse or the child of the spouse, the time is indefinite and the court has discretion in the length of time the court will order support. Ay disability is subject to future court review and must continue during the time the support is provided.
How much can the court order? The court cannot order more than the lesser of $2,500 or 20 percent of the spouse’s average monthly gross income. I will not get into how that is calculated here. If you are in a situation where you need to calculate this, call a lawyer.
When does it end? When either spouse dies, when the parties remarry (yeah, right), or if the party receiving support COHABITS WITH ANOTHER PERSON IN A PERMANENT PLACE OF ABODE ON A CONTINUING CONJUGAL BASIS. I capitalized this because it is the one that will arise most often. What it means would have to be determined on case by case basis by the judge. There are probably a million different scenarios with a million different answers to this one.
There are two additional types of alimony or support that I did not discuss above. The first is temporary support that the court orders while the case is pending. Anybody can qualify for this, provided that the evidence is there to overcome the presumption discussed above. So, a person married less than 10 years can qualify for temporary support while the case is pending, but will not get spousal support after the divorce (unless some other provision qualifies them for it).
The other type is called contractual alimony and involves an agreement or “contract” between the parties to certain future payments to a spouse after the divorce. Bottom line, regardless of the length of marriage, etc…the parties are free to agree on contractual alimony under any terms they like. The big difference between this and the spousal maintenance or support discussed above is the enforceability of the order. Without getting too detailed, contractual alimony is considered a debt, and in Texas you cannot be put in jail for failure to pay a debt. Spousal maintenance or temporary spousal support is not a debt and therefore the spouse not paying as ordered could potentially be put in jail for contempt of court. If you need further analysis of this point, you really need to contact a lawyer because it is somewhat of a tricky issue in determining which you have or are thinking of agreeing to.
Until next time....
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!
Monday, July 24, 2006
where to file
Okay, we know the grounds for filing for a divorce, but where do we file? The Texas Family Code Section 6.301 sets out the general requirements for filing a divorce in Texas. In order to maintain a suit in Texas, either the person filing the divorce OR the person being sued for divorce must have resided in the State of Texas for six (6) months and in the county where the divorce is filed for ninety (90) days PRIOR TO THE DATE THE DIVORCE IS FILED.
There are two important notes in the above paragraph. First, a divorce can be filed where either the person filing the divorce lives in Texas or where the person being sued for divorce lives. For example, husband and wife separate and Husband moves to Fort Worth in January 2005. Wife stays in Dallas County, Texas where the family had resided. Husband wants to file for divorce. He can file in Tarrant County because he has resided in Texas for 6 months and Tarrant County for 90 days prior to filing, or he can file in Dallas County because his wife has resided in the State of Texas for 6 months and Dallas County for the 90 days prior to his filing.
The second important note is how the time is calculated. The determining point in time is the date the request for divorce is filed. In my above example, let’s say that Husband had a really bad new years eve and decided to move to Fort Worth on January 1, 2006, leaving his hung over spouse behind. Later, say the first week of March 2006, he decides to file for divorce. In this example, Husband has lived in Texas for 6 months, but has only lived in Tarrant County for approximately 60 days. For purposes of filing for divorce, in the first week of March, he would file in Dallas County because his wife has had residency there for 90 days PRIOR TO THE DATE THE DIVORCE IS FILED. If he waited until on or after April 1, 2006, he could file in Tarrant County. If he cannot wait that long, he has to file using his wife’s residency because he has not established residency anywhere else. He is a man with no home.
Another little side note... let’s say Husband has lived in Tarrant County for 90 days and files for divorce in Tarrant County. Once he filed in Tarrant County, he can move to any other county he likes and the suit will be maintained in Tarrant County. You do not have to continue to live in the county where you file; you just have to live in that county for 90 days prior to filing the suit.
These same rules stated above still apply when a party lives out of state as well, with one small exception. For example, in the above scenarios, Husband moves to Oklahoma City instead of moving to Tarrant County. He moves on January 1, 2006 and decides he will file for divorce on July 1, 2006. Even though he is now a resident of Oklahoma, he can file for divorce in Dallas County because Wife has lived in the state of Texas for six (6) months.
You may notice that I did not mention anything about the ninety (90) days in the above scenario. That is the difference between both parties being in state and one party being out of state. It is irrelevant how long Wife has lived in Dallas County; Husband can file in the county where she resides at any time as long as she has lived in Texas for 6 months prior to his filing. By example, again, Husband moves to Oklahoma City on January 1, 2006, and on the same day Wife decides to move to Austin with her family. Husband decides to file for divorce on January 3, 2006. He could file in Travis County (Austin) against Wife because she has been a resident of Texas for 6 months prior to his filing for divorce.
Military personnel – Where would a person in the armed forces or other government job that requires relocation, outside the control of the party, file for divorce? Persons stationed outside Texas, who consider Texas their home state, can file for divorce in Texas in the county where they consider themselves to reside. Many times that place will be where their parents live, or other family member. The requirements of six (6) months in Texas and ninety (90) days in a Texas county are deemed met even though the party is stationed elsewhere.
The second situation for military personnel is those stationed here in Texas. They can file for divorce in Texas as long as they meet the six month and ninety day requirements discussed above.
Divorces are typically filed in the District Court of the given county. In certain situations a divorce may have to be filed in another court such as a probate court, but those cases are few and far between. Some counties only have one district court, while others have multiple district courts. In multiple district court counties, the clerk of the district courts determines which district court the case will be assigned to, for instance the 301st District Court or the 330th District Court.
The document that begins the divorce suit is the Original Petition for Divorce. This document is simply a request made by the person filing the divorce to the district court to do certain things that the person filing the petition has requested. It is not an order, but simply a request for the court to take action. Many times a person will think that because their petition asked that the spouse not be allowed to sell property, for instance, that the spouse is prohibited from selling property. That is incorrect. The petition for divorce may ask the court to do that, but the court has not ordered anybody to do or refrain from doing anything. The court does that through orders, which will be discussed later.
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!
There are two important notes in the above paragraph. First, a divorce can be filed where either the person filing the divorce lives in Texas or where the person being sued for divorce lives. For example, husband and wife separate and Husband moves to Fort Worth in January 2005. Wife stays in Dallas County, Texas where the family had resided. Husband wants to file for divorce. He can file in Tarrant County because he has resided in Texas for 6 months and Tarrant County for 90 days prior to filing, or he can file in Dallas County because his wife has resided in the State of Texas for 6 months and Dallas County for the 90 days prior to his filing.
The second important note is how the time is calculated. The determining point in time is the date the request for divorce is filed. In my above example, let’s say that Husband had a really bad new years eve and decided to move to Fort Worth on January 1, 2006, leaving his hung over spouse behind. Later, say the first week of March 2006, he decides to file for divorce. In this example, Husband has lived in Texas for 6 months, but has only lived in Tarrant County for approximately 60 days. For purposes of filing for divorce, in the first week of March, he would file in Dallas County because his wife has had residency there for 90 days PRIOR TO THE DATE THE DIVORCE IS FILED. If he waited until on or after April 1, 2006, he could file in Tarrant County. If he cannot wait that long, he has to file using his wife’s residency because he has not established residency anywhere else. He is a man with no home.
Another little side note... let’s say Husband has lived in Tarrant County for 90 days and files for divorce in Tarrant County. Once he filed in Tarrant County, he can move to any other county he likes and the suit will be maintained in Tarrant County. You do not have to continue to live in the county where you file; you just have to live in that county for 90 days prior to filing the suit.
These same rules stated above still apply when a party lives out of state as well, with one small exception. For example, in the above scenarios, Husband moves to Oklahoma City instead of moving to Tarrant County. He moves on January 1, 2006 and decides he will file for divorce on July 1, 2006. Even though he is now a resident of Oklahoma, he can file for divorce in Dallas County because Wife has lived in the state of Texas for six (6) months.
You may notice that I did not mention anything about the ninety (90) days in the above scenario. That is the difference between both parties being in state and one party being out of state. It is irrelevant how long Wife has lived in Dallas County; Husband can file in the county where she resides at any time as long as she has lived in Texas for 6 months prior to his filing. By example, again, Husband moves to Oklahoma City on January 1, 2006, and on the same day Wife decides to move to Austin with her family. Husband decides to file for divorce on January 3, 2006. He could file in Travis County (Austin) against Wife because she has been a resident of Texas for 6 months prior to his filing for divorce.
Military personnel – Where would a person in the armed forces or other government job that requires relocation, outside the control of the party, file for divorce? Persons stationed outside Texas, who consider Texas their home state, can file for divorce in Texas in the county where they consider themselves to reside. Many times that place will be where their parents live, or other family member. The requirements of six (6) months in Texas and ninety (90) days in a Texas county are deemed met even though the party is stationed elsewhere.
The second situation for military personnel is those stationed here in Texas. They can file for divorce in Texas as long as they meet the six month and ninety day requirements discussed above.
Divorces are typically filed in the District Court of the given county. In certain situations a divorce may have to be filed in another court such as a probate court, but those cases are few and far between. Some counties only have one district court, while others have multiple district courts. In multiple district court counties, the clerk of the district courts determines which district court the case will be assigned to, for instance the 301st District Court or the 330th District Court.
The document that begins the divorce suit is the Original Petition for Divorce. This document is simply a request made by the person filing the divorce to the district court to do certain things that the person filing the petition has requested. It is not an order, but simply a request for the court to take action. Many times a person will think that because their petition asked that the spouse not be allowed to sell property, for instance, that the spouse is prohibited from selling property. That is incorrect. The petition for divorce may ask the court to do that, but the court has not ordered anybody to do or refrain from doing anything. The court does that through orders, which will be discussed later.
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!
Friday, May 12, 2006
grounds for divorce
divorce
The big day has arrived…the discussion about divorces. This is a huge topic, so I will have to divide it into sections. Today we will discuss the grounds for getting a divorce. This is a serious subject and can be a devastating stage in someone’s life. I have tried to add a little humor to the subject to make it an easier read. If you are in the middle of a divorce, or contemplating divorce and you do not think humor is appropriate, you can rest assured that I take each and every case that walks through my door deadly serious, and I play to win. Then again…a little humor never hurt anyone….
grounds for getting a divorce in Texas
There are basically 7 “grounds” for getting a divorce in Texas. Grounds are basically reasons to get a divorce. Back in the ancient days these used to matter more than they do now because now they have the no fault (insupportability) divorce. In the old days they did not have this and you had to have “grounds”.
insupportability
This is the most common reason for divorce. In my practice, I plead this in every divorce. You can plead other grounds (below) in addition to this one, but this one is most common. With this one you simply allege that the marriage has become insupportable because of discord and conflict, which destroys the legitimate ends of the marriage relationship and there is no reasonable expectation of reconciliation.
How is that for legal mumbo jumbo? This is the no contest divorce clause and translated means you and your spouse are not getting along and won’t be getting along ever again…SO GIVE ME A DIVORCE!
cruelty
You can get a divorce if your spouse is guilty of cruel treatment to the extent that further living together is not possible. LOL. Just about anybody reading this who is considering divorce probably feels like this applies to them. In my practice I sometimes allege this, but cannot say that I have ever used it as the grounds.
adultery
BAM! This is a big one. The definition is having sexual intercourse with one person while married to another. Two interesting little tidbits on this one…first, you will notice that it says “sexual intercourse”, so I guess all you bad little boys and girls out there (and I know you are out there considering some of the rumors I have been hearing about my readers) who are just doing the kissing thing or any other mouth activities are safe (wink wink). You are still guilty of being naughty.
The second interesting thing about the wording (or maybe it isn’t interesting) is that it says having intercourse with one “person” while married to another. So….any of my readers out there who may still be in the closet, this could apply to you.
As far as going to court over this ground, I have one thing to say…PROVE IT! I cannot tell you how many times this is raised in a divorce and about nine times out of ten there is no way to prove it. Even if you can prove your spouse is running around with another “person” that in and of itself is not proof of “sexual intercourse”. Get it? Good!
Many times people (lawyers) use this ground to attempt to get their client a bigger share of the divorce property pot.
conviction of a felony
You can get a divorce in Texas if your spouse has been convicted of a felony AND has been imprisoned for at least a year AND has not been pardoned. Pretty self explanatory. The funny part about this one is one last little item of the statute that says a divorce may not be granted under this section if the convicted spouse was convicted on the testimony of the other spouse!
Translated that says if your mean a#$ put me in here, guess what, you can’t divorce me! BOO YA! Kidding of course.
abandonment
You can get a divorce in Texas if your spouse hauled butt on you with the intention of abandoning you and has not returned for a year. Simple.
I get a lot of calls from people stating that there spouse just moved out and abandoned them…”I want to claim abandonment”. Well, we now know the requirements.
living apart
You can get a divorce on this ground if you and your spouse have lived apart without cohabitation (living together) for at least three years. Why not just use abandonment? What constitutes “abandonment” versus just separating and “living apart”? Enquiring minds want to know!
I don’t know the answer to these questions. I could find it, but quite honestly, why? Just get an “insupportable” divorce. Actually, there may be strategic reasons for using grounds other than “insupportability”, but not in your typical case.
confinement in mental hospital
If, at the time you file for divorce, your spouse is confined in a mental hospital, and has been for three years, and it looks like they are not getting any better, you can seek a divorce.
So there you go…7 grounds for getting divorced in Texas. Like I said earlier, almost all divorces that I have been involved with are granted on the grounds of insupportability. However, there are situations when alleging other grounds can be advantageous to your case.
To learn more about me, visit my new blog at www.theDallasDivorceBlog.com or www.PlanoDivorceBlog.com
Until next time….
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!
The big day has arrived…the discussion about divorces. This is a huge topic, so I will have to divide it into sections. Today we will discuss the grounds for getting a divorce. This is a serious subject and can be a devastating stage in someone’s life. I have tried to add a little humor to the subject to make it an easier read. If you are in the middle of a divorce, or contemplating divorce and you do not think humor is appropriate, you can rest assured that I take each and every case that walks through my door deadly serious, and I play to win. Then again…a little humor never hurt anyone….
grounds for getting a divorce in Texas
There are basically 7 “grounds” for getting a divorce in Texas. Grounds are basically reasons to get a divorce. Back in the ancient days these used to matter more than they do now because now they have the no fault (insupportability) divorce. In the old days they did not have this and you had to have “grounds”.
insupportability
This is the most common reason for divorce. In my practice, I plead this in every divorce. You can plead other grounds (below) in addition to this one, but this one is most common. With this one you simply allege that the marriage has become insupportable because of discord and conflict, which destroys the legitimate ends of the marriage relationship and there is no reasonable expectation of reconciliation.
How is that for legal mumbo jumbo? This is the no contest divorce clause and translated means you and your spouse are not getting along and won’t be getting along ever again…SO GIVE ME A DIVORCE!
cruelty
You can get a divorce if your spouse is guilty of cruel treatment to the extent that further living together is not possible. LOL. Just about anybody reading this who is considering divorce probably feels like this applies to them. In my practice I sometimes allege this, but cannot say that I have ever used it as the grounds.
adultery
BAM! This is a big one. The definition is having sexual intercourse with one person while married to another. Two interesting little tidbits on this one…first, you will notice that it says “sexual intercourse”, so I guess all you bad little boys and girls out there (and I know you are out there considering some of the rumors I have been hearing about my readers) who are just doing the kissing thing or any other mouth activities are safe (wink wink). You are still guilty of being naughty.
The second interesting thing about the wording (or maybe it isn’t interesting) is that it says having intercourse with one “person” while married to another. So….any of my readers out there who may still be in the closet, this could apply to you.
As far as going to court over this ground, I have one thing to say…PROVE IT! I cannot tell you how many times this is raised in a divorce and about nine times out of ten there is no way to prove it. Even if you can prove your spouse is running around with another “person” that in and of itself is not proof of “sexual intercourse”. Get it? Good!
Many times people (lawyers) use this ground to attempt to get their client a bigger share of the divorce property pot.
conviction of a felony
You can get a divorce in Texas if your spouse has been convicted of a felony AND has been imprisoned for at least a year AND has not been pardoned. Pretty self explanatory. The funny part about this one is one last little item of the statute that says a divorce may not be granted under this section if the convicted spouse was convicted on the testimony of the other spouse!
Translated that says if your mean a#$ put me in here, guess what, you can’t divorce me! BOO YA! Kidding of course.
abandonment
You can get a divorce in Texas if your spouse hauled butt on you with the intention of abandoning you and has not returned for a year. Simple.
I get a lot of calls from people stating that there spouse just moved out and abandoned them…”I want to claim abandonment”. Well, we now know the requirements.
living apart
You can get a divorce on this ground if you and your spouse have lived apart without cohabitation (living together) for at least three years. Why not just use abandonment? What constitutes “abandonment” versus just separating and “living apart”? Enquiring minds want to know!
I don’t know the answer to these questions. I could find it, but quite honestly, why? Just get an “insupportable” divorce. Actually, there may be strategic reasons for using grounds other than “insupportability”, but not in your typical case.
confinement in mental hospital
If, at the time you file for divorce, your spouse is confined in a mental hospital, and has been for three years, and it looks like they are not getting any better, you can seek a divorce.
So there you go…7 grounds for getting divorced in Texas. Like I said earlier, almost all divorces that I have been involved with are granted on the grounds of insupportability. However, there are situations when alleging other grounds can be advantageous to your case.
To learn more about me, visit my new blog at www.theDallasDivorceBlog.com or www.PlanoDivorceBlog.com
Until next time….
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!
Wednesday, May 03, 2006
annulment
Voidable Marriages - otherwise known as an Annulment
From the start, let’s differentiate this topic from my previous post. A void marriage is a marriage that never existed because of some impediment or problem with the marriage itself. A voidable marriage on the other hand is a valid marriage, but for a reason discussed below the State of Texas and the courts will let one of the married parties out of it.
Following are the grounds for an annulment in Texas.
Underage:
Under the age of 14 - Section 6.101 of the Family Code states that a marriage entered into by a person under the age of 14 can be challenged by an annulment proceeding anytime before that child reaches the age of 14. If the child is married before 14, but the lawsuit is filed after the child turns 14, the lawsuit is barred (cannot be filed) unless it is filed within the later of 1) 90 days after the person filing the annulment learned or should have learned of the marriage; or 2) 90 days after the date the child married turned 14. A suit cannot ever be filed if the child married before 14 years of age reaches the age of 18.
(It is important to note that a child cannot file a lawsuit, so any discussion of filing of lawsuits would be by the parent, guardian, etc… of the child. Another important note is that a court, in any under 14 marriage, can give permission if requested.)
So…if a child is married before the age of 14, everyone knows about it, and nothing is ever done, it seems that it is a valid marriage and only a divorce can dissolve it. That is creepy.
At least 14 but under 18 - Section 6.102 of the Family Code states that unless the court allows the marriage, or a parent consents, a suit to annul the marriage can be filed anytime by a parent or guardian before the child reaches 18 years of age.
At this age level, the court has discretion in whether they grant the annulment or not based upon the facts. In the scenario above (under 14) it is not discretionary and the court must grant the annulment.
Note that a parent can consent to this age level marriage.
Influence of Alcohol or Narcotics – Section 6.105 of the Family Code - This one is kind of obvious…if you are wasted when you get married, it can be annulled. To determine if this is the case, the Court looks to whether at the time of the marriage the person seeking the annulment was under the influence of alcohol or narcotics to the level that their consent to marriage is questionable and the person seeking the annulment did not live with the spouse since they sobered up.
Impotency – Section 6.106 of the Family Code - Ouch! I don’t even like to type that word! Bottom line guys, if you marry a girl when you are impotent and you don’t tell her, you could be getting an annulment. The only way this will not happen is if your wife continues to reside with you after learning of the impotency. Next topic!
Fraud, Duress, Force - Section 6.107 of the Family Code – To qualify for this one you must show that the other party used fraud, duress or force to get you to marry them and you did not live with them after you learned of the fraud or were released from the duress or force. In layman’s terms, if they trick you into getting married by lying or whatever, or they threaten you, you may be entitled to an annulment.
Mentally Incompetent - Section 6.108 of the Family Code – This one can be filed by a guardian on behalf of the incompetent person or by the mentally well person. If brought by someone on behalf of the mentally challenged person you must show that they did not have the mental ability to consent to the marriage and that they did not continue to live with the mentally competent person when they learned of the marriage.
A suit brought by the mentally competent party must show that they did not know the other person was mentally incompetent and that when they learned of the mental incompetency they ceased to live with the incompetent person.
Concealed Divorce - Section 6.109 of the Family Code – This one allows an annulment if you marry a person who was divorced from another person within 30 days of the marriage, you did not know this, and when you learned of it you did not continue to live with the person.
You can only use this provision within 1 year of the date of the marriage.
(Note: you will learn later that when you are divorced there is a thirty day waiting period before you can get remarried, unless the court waives the waiting period.)
Marriage within 72 hours of Licensing - Section 6.110 of the Family Code – You learned earlier in my blog (I think) that you have to get a license to get married in Texas (unless it is an informal marriage) and once you get that license you have to wait 72 hours, unless waived by the court. This section says that if you do not wait the 72 hours you can get an annulment.
You can only use this one for thirty days after the marriage.
A few final notes:
A marriage that was otherwise voidable for one of the reasons above disappears if one of the married parties dies;
There is no waiting period – you will learn later that a divorce cannot be finalized until 60 days after the petition for divorce is filed – that is not the case here.
You will notice that there is no provision for the duration of the marriage. I cannot tell you how many telephone calls I get asking if they can get an annulment because they have only been married for a month or a year or whatever. THERE IS NO ANNULMENT BECAUSE YOU HAVE BEEN MARRIED FOR ONLY A SHORT TIME. If you do not otherwise qualify under a provision above, it does not matter if you were married for one day…you must get a divorce.
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!
Friday, April 14, 2006
void marriages
interesting and exciting ways to end your marriage
Okay, so here I am again, recollecting my promise last time that I would update this blog more often! Obviously I did not perform. This is a lot of pressure! LOL. It really is a lot of work to keep one of these things active. I had no idea it would be so hard. The longer you procrastinate, the harder it gets. Anyhow, here we go, what everyone has been waiting for…..DIVORCE (and other cool ways to end it all)….followed closely in popularity by termination of parental rights.
Void Marriages
The first and somewhat uninteresting way to end your marriage is the “void” marriage. A void marriage means that the marriage never existed in the first place, even if you thought you were married. You could have been “married” for 10 years, but if the marriage is void, guess what, you have been single for 10 years! Dang, the fun you could have had!
A void marriage could arise in two likely scenarios, marrying your brother or sister (gross) or other members of your family who are too closely related (and I said this wasn’t interesting). I believe I talked about this earlier, many, many months ago. The second scenario is when you get hitched but you ain’t undone the old hitch, or explained less southern, you get married when you are still married to someone else. I know I have talked about this one earlier.
I can hear all three of you out there reading this shouting the same thing at your computer…. “Chris, Chris, please tell us who we can and can’t marry in our family cause we want to get married!” Even though it is gross if you marry anyone in your family, the State of Texas says you can’t marry the following people:
So there you go. Everyone else is fair game. So that hot cousin you see every year at the family reunion…fair game! Kidding….as I stated earlier, and I’ll state again…gross! Even step sisters/brothers…gross!
With regard to the prior existing marriage issue, I ALREADY DISCUSSED IT BELOW! GEEZ!
What about the children of these horrific void marriages you ask? Well, we know who the mommy is, and the daddies (used to be called Husband until this nasty void marriage issue arose) well, they are still the presumed father of the kiddos and thereby have all the rights, duties, powers, and obligations of a parent. No paternity tests needed!
Now I hear you mumbling something like….”uh oh, I think I may have done gone out and got myself a void marriage, what do I do?” Well, in short you file a petition to declare the marriage void (NOT AN ANNULMENT….which will be discussed next). The better answer is, log onto my website (to the side over there), shoot me an email, and retain my services! If you don’t like me, hire someone else, but I definitely advise that you hire a lawyer so that your property interests and children are protected.
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!
Okay, so here I am again, recollecting my promise last time that I would update this blog more often! Obviously I did not perform. This is a lot of pressure! LOL. It really is a lot of work to keep one of these things active. I had no idea it would be so hard. The longer you procrastinate, the harder it gets. Anyhow, here we go, what everyone has been waiting for…..DIVORCE (and other cool ways to end it all)….followed closely in popularity by termination of parental rights.
Void Marriages
The first and somewhat uninteresting way to end your marriage is the “void” marriage. A void marriage means that the marriage never existed in the first place, even if you thought you were married. You could have been “married” for 10 years, but if the marriage is void, guess what, you have been single for 10 years! Dang, the fun you could have had!
A void marriage could arise in two likely scenarios, marrying your brother or sister (gross) or other members of your family who are too closely related (and I said this wasn’t interesting). I believe I talked about this earlier, many, many months ago. The second scenario is when you get hitched but you ain’t undone the old hitch, or explained less southern, you get married when you are still married to someone else. I know I have talked about this one earlier.
I can hear all three of you out there reading this shouting the same thing at your computer…. “Chris, Chris, please tell us who we can and can’t marry in our family cause we want to get married!” Even though it is gross if you marry anyone in your family, the State of Texas says you can’t marry the following people:
- An ancestor or descendant, by blood or marriage. (Writer’s note: Ancestors? That sounds like some who is dead! Wow, now that opens up a whole new can of worms! Kidding, I think it means moms, dads, grandma, grandpa, and of course your own kids, or their kids, etc…)
- A brother or sister, of the whole or half blood, or by adoption. (Do I need to explain half bloods? Okay, half blood is when one of your parents creates a beautiful new child with another person besides your mommy or daddy. A step child on the other hand has no blood relation; they are the son or daughter from a prior marriage of your new mommy or daddy. I guess we can marry our step sisters and brothers…oh goodie.)
- A parent’s brother or sister, of the whole or half blood. (Obviously aunts and uncles, and we understand the half blood thing, right?)
- A son or daughter of a brother or sister of the whole or half blood or by adoption. (Nieces and nephews).
So there you go. Everyone else is fair game. So that hot cousin you see every year at the family reunion…fair game! Kidding….as I stated earlier, and I’ll state again…gross! Even step sisters/brothers…gross!
With regard to the prior existing marriage issue, I ALREADY DISCUSSED IT BELOW! GEEZ!
What about the children of these horrific void marriages you ask? Well, we know who the mommy is, and the daddies (used to be called Husband until this nasty void marriage issue arose) well, they are still the presumed father of the kiddos and thereby have all the rights, duties, powers, and obligations of a parent. No paternity tests needed!
Now I hear you mumbling something like….”uh oh, I think I may have done gone out and got myself a void marriage, what do I do?” Well, in short you file a petition to declare the marriage void (NOT AN ANNULMENT….which will be discussed next). The better answer is, log onto my website (to the side over there), shoot me an email, and retain my services! If you don’t like me, hire someone else, but I definitely advise that you hire a lawyer so that your property interests and children are protected.
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!
Monday, March 13, 2006
the putative marriage
I had intended to begin my discussion of the divorce at this point, but stumbled across another issue that I will touch on briefly.
Getting Married
The “Putative” Marriage in Texas
In all my years of dealing with marriages (or the breaking them up) I do not believe I have ever run across a putative marriage. So we, you and I, are learning something new today. Isn’t this fun!
Putative Marriage
The putative marriage does not exist in the Family Code, only in case law. Basically a putative marriage is created when to people (man and woman) believe that they are married, but are not because of some impediment to their marriage, i.e. one party is still married to someone else. This scenario creates a void marriage pursuant to §6.202 of the Family Code. Parties in a putative marriage have two choices:
If the second choice is taken, and the prior marriage dissolved, the later marriage now becomes a valid marriage. If the first choice is taken, the courts have held that the putative spouse can hold the same property rights and rights to children as in a normal divorce.
This is a very simple explanation of a somewhat complex theory, but I think the idea is pretty clear.
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. No recipients of content from this blog, 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. I expressly disclaim all liability in respect to actions taken or not taken based on any or all the content of this blog. Talk to a lawyer first, preferably me!
Getting Married
The “Putative” Marriage in Texas
In all my years of dealing with marriages (or the breaking them up) I do not believe I have ever run across a putative marriage. So we, you and I, are learning something new today. Isn’t this fun!
Putative Marriage
The putative marriage does not exist in the Family Code, only in case law. Basically a putative marriage is created when to people (man and woman) believe that they are married, but are not because of some impediment to their marriage, i.e. one party is still married to someone else. This scenario creates a void marriage pursuant to §6.202 of the Family Code. Parties in a putative marriage have two choices:
- File suit to declare their marriage void and end it all, or
- Clear up the impediment to their marriage by getting a divorce in the prior marriage or otherwise fixing the problem that caused the putative marriage in the first place.
If the second choice is taken, and the prior marriage dissolved, the later marriage now becomes a valid marriage. If the first choice is taken, the courts have held that the putative spouse can hold the same property rights and rights to children as in a normal divorce.
This is a very simple explanation of a somewhat complex theory, but I think the idea is pretty clear.
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. No recipients of content from this blog, 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. I expressly disclaim all liability in respect to actions taken or not taken based on any or all the content of this blog. Talk to a lawyer first, preferably me!
Tuesday, March 07, 2006
the informal or common law marriage
So much for my posting weekly. Obviously I was unable to meet my wild expectations. So for my loyal readers out there, all two of you, I apologize. Now on to more discussions of how to get hitched…followed in the near future with how to rip it all up when it all goes so horribly wrong! What an uplifting topic.
Getting Married
The “Informal” Marriage or Common Law Marriage in Texas
Section §2.401 of the Texas Family Code (I’m going to call it the Family Code or Code from here on out) provides the law governing informal marriages. Generally it states that a man and a woman (very important wording alert) may prove an informal or common law marriage in Texas by showing:
1. They filed a declaration of their marriage with in a county in Texas, or
2. a) They agreed to be married, and after that agreement they, b) lived together in Texas as husband and wife; and c) the represented to others that they were married.
Requirements not mentioned above are that each party must be unmarried at the time of their agreement, otherwise the common law marriage would be void pursuant to §6.202 of the Family Code. You could overcome this if the party or parties that are married end those marriages and then continue live together as husband and wife and hold themselves out as being married. See §6.202(b). The marriage must also be created in Texas and it must be entered into by tow persons over the age of eighteen. The over eighteen provision is important as it relates to the formal marriage discussed in a prior topic where you can get formally married under the age of eighteen.
How do you prove that you agreed to be married? Well, filing a declaration pursuant to number 1 above would solve that problem. Direct evidence would also support that there was an agreement such as testimony by either party that there was an agreement or from some other person that there was an agreement. I can almost guarantee you however that if somebody disputes a common law marriage they are going to deny there ever was an agreement. So if there is no filed declaration and there is a dispute as to an agreement, how else could you prove it? The courts have held that circumstantial evidence can be used to prove an informal marriage. What circumstantial evidence is enough? It is tough to say and it would seem that the courts look at it on a case by case basis.
Living together is pretty self explanatory and should be relatively easy to prove or disprove, but it must be in Texas.
Finally, there is the “holding out” requirement or representing to others that you were married. Again, establishing this is really on a case by case basis. No one set of facts is controlling. Courts have held that both parties must participate in this “holding out” and that an occasional reference to the other party as your spouse is not sufficient. In order for this requirement to be met, the entire world must think you are married.
Once you are common law married, it is as if you went through the more formal marriage discussed earlier. There is no distinction between the two except as discussed below.
The difference between a formal marriage and a valid informal marriage comes when you separate. When you separate under a formal marriage, you are still married. There is no “legal separation” in Texas so theoretically you could remain separated and still married forever. In an informal marriage however, the legislature has said that if you separate in an informal marriage, and you do not file a court action within two years after you separate, it is presumed that there was no informal or common law marriage at all. See §2.401(b) of the family code.
Obviously if somebody files an action within the two years after separation, the court will decide the issue. Likewise, if someone files an action over two years after the separation, the court will still hear the case, the difference is that now the person claiming that there is a marriage has to “rebut” the presumption that no marriage existed. If it was a fifty fifty proposition had it been filed within two years of separation, it would be VERY difficult to rebut the presumption if it was filed after the two years.
What happens if nobody ever files anything? This could really present some serious problems. If both parties go their separate ways never to speak again, then I guess they were never married. However, what if they go their separate ways for 5 years, and during that time the man of that relationship formally marry another woman. Let’s say they have been married for one year and have a child. And what if the former woman of that relationship decides after 5 years she wants to file a divorce suit? We know that she has rebuttable presumption to overcome, but let’s assume she does overcome it and the court finds that there was a common law marriage. OUCH! Now the courts have told this guy he is still married to this woman and his current marriage is void! Oh man would I hate to be that guy. You see the problem that could arise. Let me say this, if you find yourself in this situation, or any part of this situation, contact me at http://www.chrislawyer.com/ (shameless plug) and let me help you through this.
The moral of the above fact scenario, other than you should have contacted me, is that if you find yourself in a similar scenario, hire a lawyer to get a court order finding that you are not married!
One final note on filing a declaration, if you file one pursuant to number 1 above, guess what, you are married! Neither party will have to prove any of the things set out in number 2 nor will the two year filing requirement apply. If you file the declaration, congratulations on your new marriage.
So there it is the informal marriage. Kind of a scary proposition for all you guys and girls out there living with your significant others. My advice? Move the he*& out! Kidding.
If you would like to know more about me, or see my new blog, please visit www.theDallasDivorceBlog.com.
Until next week…or month (grin).
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. No recipients of content from this blog, 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. I expressly disclaim all liability in respect to actions taken or not taken based on any or all the content of this blog. Talk to a lawyer first, preferably me!
Getting Married
The “Informal” Marriage or Common Law Marriage in Texas
Section §2.401 of the Texas Family Code (I’m going to call it the Family Code or Code from here on out) provides the law governing informal marriages. Generally it states that a man and a woman (very important wording alert) may prove an informal or common law marriage in Texas by showing:
1. They filed a declaration of their marriage with in a county in Texas, or
2. a) They agreed to be married, and after that agreement they, b) lived together in Texas as husband and wife; and c) the represented to others that they were married.
Requirements not mentioned above are that each party must be unmarried at the time of their agreement, otherwise the common law marriage would be void pursuant to §6.202 of the Family Code. You could overcome this if the party or parties that are married end those marriages and then continue live together as husband and wife and hold themselves out as being married. See §6.202(b). The marriage must also be created in Texas and it must be entered into by tow persons over the age of eighteen. The over eighteen provision is important as it relates to the formal marriage discussed in a prior topic where you can get formally married under the age of eighteen.
How do you prove that you agreed to be married? Well, filing a declaration pursuant to number 1 above would solve that problem. Direct evidence would also support that there was an agreement such as testimony by either party that there was an agreement or from some other person that there was an agreement. I can almost guarantee you however that if somebody disputes a common law marriage they are going to deny there ever was an agreement. So if there is no filed declaration and there is a dispute as to an agreement, how else could you prove it? The courts have held that circumstantial evidence can be used to prove an informal marriage. What circumstantial evidence is enough? It is tough to say and it would seem that the courts look at it on a case by case basis.
Living together is pretty self explanatory and should be relatively easy to prove or disprove, but it must be in Texas.
Finally, there is the “holding out” requirement or representing to others that you were married. Again, establishing this is really on a case by case basis. No one set of facts is controlling. Courts have held that both parties must participate in this “holding out” and that an occasional reference to the other party as your spouse is not sufficient. In order for this requirement to be met, the entire world must think you are married.
Once you are common law married, it is as if you went through the more formal marriage discussed earlier. There is no distinction between the two except as discussed below.
The difference between a formal marriage and a valid informal marriage comes when you separate. When you separate under a formal marriage, you are still married. There is no “legal separation” in Texas so theoretically you could remain separated and still married forever. In an informal marriage however, the legislature has said that if you separate in an informal marriage, and you do not file a court action within two years after you separate, it is presumed that there was no informal or common law marriage at all. See §2.401(b) of the family code.
Obviously if somebody files an action within the two years after separation, the court will decide the issue. Likewise, if someone files an action over two years after the separation, the court will still hear the case, the difference is that now the person claiming that there is a marriage has to “rebut” the presumption that no marriage existed. If it was a fifty fifty proposition had it been filed within two years of separation, it would be VERY difficult to rebut the presumption if it was filed after the two years.
What happens if nobody ever files anything? This could really present some serious problems. If both parties go their separate ways never to speak again, then I guess they were never married. However, what if they go their separate ways for 5 years, and during that time the man of that relationship formally marry another woman. Let’s say they have been married for one year and have a child. And what if the former woman of that relationship decides after 5 years she wants to file a divorce suit? We know that she has rebuttable presumption to overcome, but let’s assume she does overcome it and the court finds that there was a common law marriage. OUCH! Now the courts have told this guy he is still married to this woman and his current marriage is void! Oh man would I hate to be that guy. You see the problem that could arise. Let me say this, if you find yourself in this situation, or any part of this situation, contact me at http://www.chrislawyer.com/ (shameless plug) and let me help you through this.
The moral of the above fact scenario, other than you should have contacted me, is that if you find yourself in a similar scenario, hire a lawyer to get a court order finding that you are not married!
One final note on filing a declaration, if you file one pursuant to number 1 above, guess what, you are married! Neither party will have to prove any of the things set out in number 2 nor will the two year filing requirement apply. If you file the declaration, congratulations on your new marriage.
So there it is the informal marriage. Kind of a scary proposition for all you guys and girls out there living with your significant others. My advice? Move the he*& out! Kidding.
If you would like to know more about me, or see my new blog, please visit www.theDallasDivorceBlog.com.
Until next week…or month (grin).
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. No recipients of content from this blog, 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. I expressly disclaim all liability in respect to actions taken or not taken based on any or all the content of this blog. Talk to a lawyer first, preferably me!
Thursday, February 02, 2006
the texas marriage
Well, here we go…a review of the Texas Family Code. The headings I have used do not exactly track the Texas Family Code, but specific sections will be referenced as we move along. You may want to leave the family code link opened so that you can continually refer to it.
If anyone ever happens to look at this family law blog…please feel free to comment or ask questions as we go along.
Getting Married
The “Formal” Marriage
Generally, a marriage validly created in one state will be recognized in all other states. I say “generally” because of the new hot topic of gay marriages. Below we will discuss how Texas generally side-steps this issue.
If you are married in another state, but reside in Texas, the laws of the State of Texas apply to you regardless of where you were married. Any marriage entered into in the State of Texas is presumed valid unless evidence is offered otherwise.
The first step in getting married in Texas is to obtain a license. The requirements for the license can be found under §§2.001 through 2.501.
Only a man and a woman can apply for a marriage license in Texas. Persons of the same sex cannot be issued a license. This is set out in §2.001. Texas continues with this line of thought later in §6.204 by prohibiting “civil unions” or anything purporting to give persons of the same sex marital rights. This applies to laws of other states as well. It is against the State of Texas’ “public policy”. Therefore gay marriages from other states are not recognized here.
I will not bore you with other license requirements except to answer the common questions of how old you have to be to get married. Typically, you have to be over 18 years of age to get a license. You can get married at age 14 or older if you meet the requirements set out in §2.003. You can even be married at ages under 14 if you ask the court to allow it and they do!
You cannot marry persons related by whole or half blood or by adoption. A marriage attempted in violation of this is “void”, i.e. it never existed. Don’t be to down, first cousin’s can still marry! Yee ha!
Another important point for those of you who are recently divorced, you cannot obtain a license to marry if you were divorced in the prior thirty days unless you are marrying the person you just divorced (yikes) or the court waives the requirement. IMPORTANT NOTE, if you absolutely must jump back into the fire within thirty days, get the judge to waive the prohibition in your decree of divorce. They will almost always grant the request.
Next week we tackle the “informal” marriage.
If anyone ever happens to look at this family law blog…please feel free to comment or ask questions as we go along.
Getting Married
The “Formal” Marriage
Generally, a marriage validly created in one state will be recognized in all other states. I say “generally” because of the new hot topic of gay marriages. Below we will discuss how Texas generally side-steps this issue.
If you are married in another state, but reside in Texas, the laws of the State of Texas apply to you regardless of where you were married. Any marriage entered into in the State of Texas is presumed valid unless evidence is offered otherwise.
The first step in getting married in Texas is to obtain a license. The requirements for the license can be found under §§2.001 through 2.501.
Only a man and a woman can apply for a marriage license in Texas. Persons of the same sex cannot be issued a license. This is set out in §2.001. Texas continues with this line of thought later in §6.204 by prohibiting “civil unions” or anything purporting to give persons of the same sex marital rights. This applies to laws of other states as well. It is against the State of Texas’ “public policy”. Therefore gay marriages from other states are not recognized here.
I will not bore you with other license requirements except to answer the common questions of how old you have to be to get married. Typically, you have to be over 18 years of age to get a license. You can get married at age 14 or older if you meet the requirements set out in §2.003. You can even be married at ages under 14 if you ask the court to allow it and they do!
You cannot marry persons related by whole or half blood or by adoption. A marriage attempted in violation of this is “void”, i.e. it never existed. Don’t be to down, first cousin’s can still marry! Yee ha!
Another important point for those of you who are recently divorced, you cannot obtain a license to marry if you were divorced in the prior thirty days unless you are marrying the person you just divorced (yikes) or the court waives the requirement. IMPORTANT NOTE, if you absolutely must jump back into the fire within thirty days, get the judge to waive the prohibition in your decree of divorce. They will almost always grant the request.
Next week we tackle the “informal” marriage.
Thursday, January 26, 2006
first post
This is my inaugural post to my new blog. The purpose of this blog is twofold: 1) promote my website and 2) to provide a place for the masses to learn about family law in Texas.
If anyone ever actually reads this blog, I would be happy to discuss whatever topics are of interest.
The initial plan is to cover each major section of the Texas Family Code and hopefully translate it into language everyone can understand. That is the plan. We’ll see how that goes, and if anyone ever looks at it! I will attempt to add a new topic each week.
Until next week…..
If anyone ever actually reads this blog, I would be happy to discuss whatever topics are of interest.
The initial plan is to cover each major section of the Texas Family Code and hopefully translate it into language everyone can understand. That is the plan. We’ll see how that goes, and if anyone ever looks at it! I will attempt to add a new topic each week.
Until next week…..
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