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Houston Business and Family Law Blog

Answers to questions about common law marriage requirements

Since the 2015 Obergefell decision in the U.S. Supreme Court, same-sex couples in Texas have all the same rights pertaining to marriage and divorce that apply to heterosexual couples. At Laura Dale & Associates, we know that this can cause confusion as it relates to the beginning of a common law marriage as well as the possible end. In this article, we endeavor to answer the questions you may have to clear up any confusion. 

According to FindLaw, common law marriage is valid and legal in Texas despite the lack of a marriage license and other formalities. However, it does not happen automatically once you have lived with a partner for a certain period of time. There are three specific requirements that you and your intended spouse must meet to achieve recognition of your common law marriage:

  • Agreement to the marriage
  • Representation of yourselves as a married couple to others
  • Living together as a married couple after the initial agreement took place

What is a Standard Possession Order?

If you and your spouse decide to seek a Texas divorce, one of the most important things you will have to do is devise a post-divorce parenting plan setting forth how the two of you intend to make sure that your children continue to have the benefits of a continuing relationship with both of you. Admittedly, it can be difficult to arrive at a plan with which you both agree and will commit to live by. But what you need to realize is that if you and your spouse fail to agree to a parenting plan of your own devising, Texas law will put one in place for you.

The Texas Family Code provides for a Standard Possession Order that serves as the default parenting plan by which you and your then former spouse will have to abide if you do not devise one of your own.

What constitutes separate property?

If you have recently filed for divorce in Texas, you may feel overwhelmed with the prospect of separating the marital property you have accumulated throughout your years of marriage. It can be difficult to part with property and possessions that you have held onto for so long. Yet, negotiating community property is part of the divorce process. In Texas, all community or marital property is divided equally in half, with each party getting 50%. However, not all property is considered community. There may be some items that can remain in your sole possession even after the divorce is finalized.

Separate property is not divided in a divorce and stays with the original owner. This includes property that you may have owned prior to getting married. For example, if you owned property before getting married and your name is the only name on the title to that property, it is considered separate and not eligible for division. Yet, if at any time during the marriage you amended the title to include your spouse’s name, the property then becomes marital property.

Don't believe everything you hear about prenups

Marriage is absolutely about love, companionship and family. It is also about contracts, finances and other businesslike issues. Balancing the two sides of the marital relationship takes some work, which you may want to start prior to walking down the aisle.

Prenuptial agreements continue to get a bad rap with some people, so gaining an understanding of what this agreement really is and does could dispel any misconceptions you have that make you hesitate to consider using one.

Accounting for all marital property in a divorce

Going through a divorce can be overwhelming, as there are a myriad of topics to negotiate in the divorce settlement. Separating marital property may be one of the most difficult issues to tackle when dealing with divorce. For some, it can be emotional having to part with property and assets that have been amassed throughout years of marriage. Understanding what marital property entails, however, may help the process run smoother and may help to ensure couples receive everything they are entitled to in the final divorce decree.

While many people think of marital property as the family home, vehicles, cars and savings accounts, there are a host of other types of community property that may be eligible for division in the divorce. These include the following:

Can I ask the court to increase support payments for my child?

Raising a child is seldom cheap. Even if a child has perfect teeth and never gets sick, you will have the normal expenses such as buying clothes and shoes as your child grows. If your child develops an interest in sports, music or other forms of expression, you can plan on paying for equipment and lessons. Of course, as your child reaches the teen years, you will have other expenses that may break your budget.

Child support payments that the Texas court ordered may be helpful, but you may be feeling that the money does not stretch far enough to cover the necessities, not to mention those extras that make your child happy. However, if your circumstances or your ex's have changed since your original support order, you may be wondering if you can request a modification of that order.

Property division in gray divorce: What you should know

The gray divorce phenomenon, or the number of people over the age of 50 who have filed for divorce, has taken America by storm. While only 2.8% of people in this age range filed for divorce 50 years ago, that number increased to 15.4% in 2011 and continues to rise. There are a number of factors to consider when people over the age of 50 decide to terminate their marriage. Like in any divorce, marital property that was accumulated throughout years of marriage must be divided between you and your spouse. However, there may be different financial considerations that affect property division when you are older, compared to when you are younger and going through a divorce.

Many people over the age of 50 have acquired money in a 401k plan, retirement account or term life insurance policy. They many also have Social Security benefits, stock options, homes and other possessions. All of these are eligible for division in a divorce, which could leave some couples in a financial bind when it comes to making it on their own. Texas, like several other states in the nation, is a community property state, meaning all marital property is divided in half between spouses. This may involve selling the family home and other possessions and then splitting the revenue in half. In some cases, people may have to return to work or turn to other means of income in order to financially support themselves post-divorce.

Can I qualify for permanent alimony?

Alimony laws in Texas and elsewhere can be complicated and emotional. Many people believe the concept of spousal support to be outdated and unfair to the paying party. On the other hand, those who did not work during the marriage or earn significantly less than their ex-spouse may need to receive spousal support until they become self-sufficient. You may wonder how long you are entitled to alimony, as well as whether you can receive it indefinitely.

According to FindLaw, the length of time you receive spousal support mainly depends on how long you were married. You may be eligible for alimony for up to five years if your marriage lasted between 10 and 20 years. You could receive spousal support up to 10 years if you were married longer than 30 years. Qualifying for payments indefinitely is another matter, however. You would need to show that a disability or having to care for a disabled dependent child renders you unable to support yourself.

Parental relocation in Texas

It is not uncommon for those who have recently divorced to want to move away from Houston. Staying in the same general area in which they made their lives with their ex-spouse may serve to bring up painful memories of the circumstances that contributed to the end off their marriage. For this reason, many of those who relocate after a divorce will often seek to put distance between themselves and their ex-spouses. Americans in general tend to go significant distances when they move (indeed, information shared by Move.org shows that over one-third of relocations are outside of one's current county). Yet moving away can be complicated when a divorced couple shares custody of their children. 

Many states have created laws specific to the issue of parental relocation. Texas, however, has not. When considering this matter, local family courts issue rulings that support the basic purpose of custody determinations in this state, which (according to Section 153.001 of the Texas Family Code) are: 

  • That children have continuing and frequent contact with both parents (when both have shown the ability to act in their best interests)
  • That children are raised in a safe and stable environment
  • That parents share in the rights and responsibilities of raising their children

A prenuptial agreement can cover a lot, but not everything

Congratulations on your impending nuptials. You may be in the midst of the planning phase -- perhaps choosing flowers, picking a venue and a photographer, tasting food and cakes, and sending out invitations. You have a lot to do, and this may seem like an awkward time to talk about preparing for the possibility of a divorce. But if you don't do it now, you probably won't do it.

If you and your future spouse agreed to enter into a prenuptial agreement, you should know that you can include several things in your agreement. You should also be aware that some issues cannot be covered in a prenup, for a variety of reasons.

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