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Musemeche Law, P.C. Blog

By tom.kiscadden 12 Jul, 2017

  Texas is unique in many ways, and our family code is certainly no exception. We are the only state in the country that allows people to be considered common-law married and while also assuming that all property acquired by the common law married couple is community property on the date of divorce. This means that a married couple who meet the conditions for common-law marriage could find themselves in divorce court dividing their assets and debts without ever having been to the altar or JP.

  So, what exactly is a common-law marriage, and how do you know if you’re in one? Under the current Texas Family Code, only a man and a woman are considered legally married under certain if certain conditions are present. First, there must be agreement to be married. In other words, the parties must have the intent to have a present, immediate and permanent marital relationship between them. An agreement remarried in the future is simply not enough. Second, the couple must live in Texas as husband and wife. This is often referred to as cohabitation, not be confused with a consummation of the marriage. It’s more than just having sexual relations under common roof. Essentially, the couple must live together as spouses and maintain household. However, the cohabitation of the spouses does not have to be continuous but the length of time at the residence could be a factor to consider. Other elements that might be important to prove the cohabitation element include whether there are bills in the name of both parties that come to the residence, if other occupants are living at the residence, personal belongings that the parties may keep at the residence and whether the residence is owned by both parties or if a lease is in both parties name.

  Finally, the third element to prove a common-law marriage exists relates to whether the parties hold themselves out to others as husband and wife. In other words, they must represent to others in Texas that they have a marriage together. This must be open and transparent to the community and not just to their close friends and family. Moreover, the representations must be made by both parties. For example, references to one another as my spouse, or my husband, and a company picnic are important factors. Equally important would be the use of a common last name for any children.

  Of course, in order for a common-law marriage to be valid, neither party can be legally married to someone else. Nor can the two parties be related to each other as would make any other traditional marriage void in Texas as well. Both parties must be at least 18 years of age.

  Currently, the statute relating to common-law marriage refers to “husband and wife” and this does not conform with the most recent United State Supreme Court ruling in Obergefell v. Hodges , 135 S.Ct. 2584 (2015) which made same-sex marriages legal throughout the country. It is presumed by many family law attorneys in Texas that the state legislature will modify the current law relating to common-law marriage in order to cover same-sex couples. If this does occur, it is expected that while the elements to established common-law marriage will not change, the factors necessary to prove the marriage in the event one “spouse” seeks to divorce the other will prove critical to success in the case. For example, how can a same-sex couple have a present, immediate agreement to be married prior to the date upon which it was first legalized by the Supreme Court? With their common-law marriage become valid only on the date the court made its ruling, despite the fact the couple had been cohabitating for years before? Alternatively, with the common-law marriage exist between them only on the date that Texas successfully in acts and modifies its common-law marriage statutes? These are but a few of the variants to questions they’re going to arise and fill our courts of appeal for years to come until a definitive and established set of rules and principles are known.

  If you are contemplating a separation or divorce from a common-law spouse, and these issues are relevant to your case, I encourage you to seek out the advice of a family law attorney to discuss your options and strategy moving forward. At Musemeche Law, PC, we have nearly three decades of family law and trial experience. Give us a call today at 281.475.4145 to schedule an appointment.
By tom.kiscadden 12 Jul, 2017

  In Texas, the short answer is "maybe." The concept of an informal marriage, sometimes referred as Common Law marriage, does exist in Texas. According to current law, (which may undergo a major re-write in this upcoming session of the Legislature) the marriage of a “man and woman” can be proved by evidence showing certain conditions have been satisfied as follows:

1. The man and woman agreed to be married, and after the agreement,

2. Lived together in Texas as husband and wife; and

3. Represented themselves to others that they were married.  

  If all three elements are present at the same time , there is a presumption that the couple is married, and under Texas law, that means the rules regarding community property apply to the income and property acquired by the couple. The couple remains “common law” married until a divorce is filed and finalized. Note that the current law specifically states a common law marriage is between a “man” and “woman.” The law also makes a reference to living together as “husband” and “wife” in order to prove the informal marriage. It is expected that the Texas Legislature will modify the current marriage statutes to comply with a recent United States Supreme Court ruling that affirmed the validity of same-sex marriages. When this change is made, same sex couples who have been living together in a committed relationship could find themselves at the courthouse too, in a divorce action for common law marriage, assuming the other elements are met.

  It is also important to understand that the amount of time a couple lives together is not the determining factor of whether or not there is a common law marriage. As long as all three of the elements are present at the same time, an informal marriage can spring into existence at anytime, even if that is on the first day of living together. On the other hand, a couple living together for years may not be married if they didn’t represent themselves to others as being married, or have initially agreed to be married to each other. In other words, just because you “play house” doesn’t mean you’re married…. it does require more.

  If you want to prove you have a valid informal marriage, you’ll need to prove the three requirements of the informal marriage as stated above at the beginning of this blog. And, to prove the three requirements, one must introduce evidence on each point. Often, the testimony of witnesses and the parties to the marriage is crucial. A witness can testify that your common law spouse introduced him/her as your husband/wife in social situations. Other evidence to prove this element could include documents such as a tax return being filed as a married couple, or insurance policies listing one person as the other person's spouse. Additionally, there are other factors that are required in order to be informally married (and thereafter divorced) in Texas. For example, the couple must each be 18 years of age or older; they must not be related to each other according to law; and neither one can be already married to someone else.

 

  While there is no specific, strict statute of limitations on a divorce action involving a common law marriage, it is important to understand that Texas law states as follows: “if a proceeding in which a marriage is to be proved . . . is not commenced before the second anniversary of the date on which the parties separated and ceased living together , it is rebuttably presumed that the parties did not enter into an agreement to be married.” (Texas Family Code, §2.401) (emphasis added). In other words, the divorce case of a common law marriage should be filed within two years of separation, or it is presumed there was no agreement to be married (the first required element).  

  Moreover, because community property laws apply to an informal, or “common law” marriage, it is wise to discuss your particular situation with a family law attorney who can provide advice and counsel on these issues, including a potential division of all assets and liabilities that exist between the couple on the date of divorce.

  At Musemeche Law, PC, we’re ready and able to provide a full range of legal services and advice on common law marriages. Feel free to call today for an appointment.
By chris.spooner 20 Jun, 2017

  No, that's not a misprint. And, while lifetime spousal support after divorce is certainly not the norm, Texas courts do have the power and authority to order alimony (we call it spousal maintenance) if specific criteria are met, and the duration of time for the award can absolutely be unlimited under certain conditions.  

  In general, a spouse seeking alimony must be legally “eligible” to receive the maintenance support. When parties divorce in Texas, not only does the court divide community property, but it also has the discretion and power to order recurring payments from one spouse to the other in the event that the spouse seeking maintenance will lack sufficient property (including separate property) to provide for his/her minimum reasonable needs. Interestingly, there is no definition of “minimum reasonable needs” in the Texas Family Code. Accordingly, the courts are faced with a fact-specific analysis in each case. In this regard, courts generally consider evidence of the following expenses to be part of the spouse’s reasonable minimum needs: rent/mortgage, property taxes, automobile payments, utilities, gasoline, groceries, drugs and medicine, clothing, and child care costs.  

  Further, assuming a spouse satisfies the first element of proving their eligibility for post divorce maintenance, the spouse seeking alimony must also pass the second prong of the eligibility test by establishing one of the following four pathways to receive the support.


  1. Evidence that the requesting spouse is the victim of family violence resulting in a conviction or deferred adjudication that occurred within 2 years before suit was filed or while pending;
  2. Evidence that a disability exists which prevents the requesting spouse to earn sufficient income due to an incapacitating physical or mental disability;
  3. A marriage that has lasted at least ten years, and the requesting spouse is unable to earn sufficient income to meet his/her minimum reasonable needs; or
  4. The requesting spouse is caring for a disabled child which causes the spouse to be unable to earn sufficient income.

  Once both prongs of the eligibility test have been met, the court must determine the duration of support. There is a presumption that courts will limit support payments to the shortest reasonable period of time necessary for the spouse seeking alimony to earn sufficient income to provide for their own minimum reasonable needs. Indeed, the legislature has established certain periods of time for the maximum duration of support as follows:   if the basis for spousal maintenance is an act of family violence, or if the length of marriage is at least ten years, but less than 20 years, then the court may only allow support for a maximum period of five years. If the marriage was at least 20 years in length, but less than 30 years, then the duration of alimony can last no more than 7 years. If the marriage is 30 years or more at the time of divorce, then the alimony can be awarded for no more than 10 years.

    However, if the spousal maintenance award is based upon a spouse’s inability to earn sufficient income due to an incapacitating physical or mental disability -- there is no maximum length of time for the award of post divorce spousal maintenance.   Instead, the court maintains jurisdiction to order the support as long as the spouse meets the eligibility criteria.

  Finally, once it is determined that a spouse is eligible for maintenance, and the length of time has been set, the maximum amount of support to be awarded to the requesting spouse is based upon the following: either 20% of the obligor’s average monthly gross income; or $5,000 – whichever amount is less. There is no requirement that spousal maintenance completely eliminate a requesting spouse’s shortfall of their monthly needs.

  In conclusion, the amount of alimony to be awarded in a divorce is determined on a case by case basis, and the court is guided by a multitude of factors including the length of marriage and the actual needs of the requesting spouse. For these reasons, and because the court maintains jurisdiction to modify or terminate the alimony award even after the divorce is final, it is important to discuss your individual situation with a family law attorney familiar with these subjects.

By chris.spooner 20 Jun, 2017

  As a lawyer in my 29th year of practice, together with additional years of education and training before that, I know our legal system must seem complex and mysterious for most. Many people find themselves introduced to lawyers and the courts for the first time in the context of a contract dispute, or a highly emotional divorce or child custody case where the stakes and stress of losing possession of one’s children, or dividing up and distributing years of accumulated assets only fuels the confusion and anxiety produced by a massive mix of legislative decisions (or statutes), prior court decisions and highly technical rules regarding evidence and procedure.

  So, let’s take some of the mystery and fear out it by explaining a bit of how we got here and why it works the way it does. Our legal system is based upon the English Common Law that emerged in England during the Middle Ages and was applied within the British colonies across the continents, including the original 13 that later evolved into our country. Common Law is a comprehensive collection of legal rules and statutes, including the laws created by our state legislature[s] and/or Congress. For example, in a contract dispute between two parties, the Texas Legislature has determined that in certain cases, the winner of the case will be awarded a reimbursement of his/her attorney’s fees. Additionally, the Texas Legislature has written extensive laws collectively known as the Texas Family Code that outline what is and is not a marriage, sets out the eligibility of one spouse to obtain alimony, determines the guidelines for child support, sets out rules for adoption, and defines the rights and duties of parents related to children, just to name a few. Finally, another example of civil statues would be the legislature passing laws that protect consumers from businesses that conduct themselves deceptively. This is commonly known as the Deceptive Trades Practices Act. These examples are but a few of the types of laws that are called statutes, and they are enforceable on society whether we voted for the men and women who passed them into law or not.

  Further, another important feature of the Common Law legal system is that it relies upon the concept of precedent , which means that decisions in one case are based upon the decisions that were historically made in similar cases in the past. These decisions are maintained over time in court records that your lawyer will often refer to “case law.” Judges are bound by these precedents. However, the precedents to be applied in the decision of each new case is determined by the presiding judge, subject only to a claim of reversible error if one side chooses to appeal the case to a higher court. An appeal is essentially asking that the decision[s] made by the presiding trial judge be reviewed and overturned. The court of appeals doesn’t hold a new trial. Rather, they read the transcript of what was said by the judge, the lawyers and the witnesses in the trial court, and review the evidence that was offered and admitted into evidence. In this way, the court of appeals determines if the trial judge followed the precedents, and if the verdict or judgment is correctly based upon the law and evidence. The court of appeals could (and often does) write an opinion about their findings. This opinion becomes precedent too if the court declares it to be important enough for it to be published and relied upon by other trial judges and lawyers in the future.

  The Texas Supreme Court is the final and highest court of appeal in Texas for civil cases. Their decision process is similar to the lower courts of appeal, but is based solely upon whether the court of appeals followed… that’s right… earlier precedent when they decided to uphold or reverse the trial court. It is important to understand that the decisions made by the Texas Supreme Court are always precedent for other Texas appeals courts and trial courts to follow. Finally, the United States Supreme Court has the right, but not the obligation , to hear an appeal from someone who may be dissatisfied with a decision made by the Texas Supreme Court. Decisions by the United States Supreme Court become precedent for all courts, including the United States Supreme Court itself. And, as stated above, because our Common Law system relies upon precedent for deciding similar cases, lawyers devote many hours of time annually to continually update their knowledge of the newest decisions made by the United States Supreme Court, and here in Texas, the Texas Supreme Court, together with the various Texas courts of appeal, since all of these new decisions could potentially impact the outcome of each new lawsuit filed at the courthouse on any given day.

  Nevertheless, despite the complex system of precedents, rules and courts, the most important component in our legal system remains the client and his/her dispute. The problems facing our clients are quite real, and often have lifelong consequences depending upon the outcome. Whether it’s a problem concerning real state, a contract or business dispute, or even one of the many aspects of divorce and child custody, the legal troubles facing our clients are why most lawyers work as hard as we do to build trust and always be prepared for court. Our Common Law system is designed to allow the attorneys for both sides to present their evidence and argument to an impartial judge, using the precedents and rules as the standards in order to guarantee that fairness will be achieved. Even though the system may appear complicated, its core value is premised upon the idea that truth and justice will prevail. It’s worked for hundreds of years. I believe in it… Still.

  At Musemeche Law, PC, we have the knowledge, skill, experience and resources to help you successfully navigate the legal system and resolve your legal dispute.   Call us today for an appointment.  

Musemeche Law, P.C. Blog

By tom.kiscadden 12 Jul, 2017

  Texas is unique in many ways, and our family code is certainly no exception. We are the only state in the country that allows people to be considered common-law married and while also assuming that all property acquired by the common law married couple is community property on the date of divorce. This means that a married couple who meet the conditions for common-law marriage could find themselves in divorce court dividing their assets and debts without ever having been to the altar or JP.

  So, what exactly is a common-law marriage, and how do you know if you’re in one? Under the current Texas Family Code, only a man and a woman are considered legally married under certain if certain conditions are present. First, there must be agreement to be married. In other words, the parties must have the intent to have a present, immediate and permanent marital relationship between them. An agreement remarried in the future is simply not enough. Second, the couple must live in Texas as husband and wife. This is often referred to as cohabitation, not be confused with a consummation of the marriage. It’s more than just having sexual relations under common roof. Essentially, the couple must live together as spouses and maintain household. However, the cohabitation of the spouses does not have to be continuous but the length of time at the residence could be a factor to consider. Other elements that might be important to prove the cohabitation element include whether there are bills in the name of both parties that come to the residence, if other occupants are living at the residence, personal belongings that the parties may keep at the residence and whether the residence is owned by both parties or if a lease is in both parties name.

  Finally, the third element to prove a common-law marriage exists relates to whether the parties hold themselves out to others as husband and wife. In other words, they must represent to others in Texas that they have a marriage together. This must be open and transparent to the community and not just to their close friends and family. Moreover, the representations must be made by both parties. For example, references to one another as my spouse, or my husband, and a company picnic are important factors. Equally important would be the use of a common last name for any children.

  Of course, in order for a common-law marriage to be valid, neither party can be legally married to someone else. Nor can the two parties be related to each other as would make any other traditional marriage void in Texas as well. Both parties must be at least 18 years of age.

  Currently, the statute relating to common-law marriage refers to “husband and wife” and this does not conform with the most recent United State Supreme Court ruling in Obergefell v. Hodges , 135 S.Ct. 2584 (2015) which made same-sex marriages legal throughout the country. It is presumed by many family law attorneys in Texas that the state legislature will modify the current law relating to common-law marriage in order to cover same-sex couples. If this does occur, it is expected that while the elements to established common-law marriage will not change, the factors necessary to prove the marriage in the event one “spouse” seeks to divorce the other will prove critical to success in the case. For example, how can a same-sex couple have a present, immediate agreement to be married prior to the date upon which it was first legalized by the Supreme Court? With their common-law marriage become valid only on the date the court made its ruling, despite the fact the couple had been cohabitating for years before? Alternatively, with the common-law marriage exist between them only on the date that Texas successfully in acts and modifies its common-law marriage statutes? These are but a few of the variants to questions they’re going to arise and fill our courts of appeal for years to come until a definitive and established set of rules and principles are known.

  If you are contemplating a separation or divorce from a common-law spouse, and these issues are relevant to your case, I encourage you to seek out the advice of a family law attorney to discuss your options and strategy moving forward. At Musemeche Law, PC, we have nearly three decades of family law and trial experience. Give us a call today at 281.475.4145 to schedule an appointment.
By tom.kiscadden 12 Jul, 2017

  In Texas, the short answer is "maybe." The concept of an informal marriage, sometimes referred as Common Law marriage, does exist in Texas. According to current law, (which may undergo a major re-write in this upcoming session of the Legislature) the marriage of a “man and woman” can be proved by evidence showing certain conditions have been satisfied as follows:

1. The man and woman agreed to be married, and after the agreement,

2. Lived together in Texas as husband and wife; and

3. Represented themselves to others that they were married.  

  If all three elements are present at the same time , there is a presumption that the couple is married, and under Texas law, that means the rules regarding community property apply to the income and property acquired by the couple. The couple remains “common law” married until a divorce is filed and finalized. Note that the current law specifically states a common law marriage is between a “man” and “woman.” The law also makes a reference to living together as “husband” and “wife” in order to prove the informal marriage. It is expected that the Texas Legislature will modify the current marriage statutes to comply with a recent United States Supreme Court ruling that affirmed the validity of same-sex marriages. When this change is made, same sex couples who have been living together in a committed relationship could find themselves at the courthouse too, in a divorce action for common law marriage, assuming the other elements are met.

  It is also important to understand that the amount of time a couple lives together is not the determining factor of whether or not there is a common law marriage. As long as all three of the elements are present at the same time, an informal marriage can spring into existence at anytime, even if that is on the first day of living together. On the other hand, a couple living together for years may not be married if they didn’t represent themselves to others as being married, or have initially agreed to be married to each other. In other words, just because you “play house” doesn’t mean you’re married…. it does require more.

  If you want to prove you have a valid informal marriage, you’ll need to prove the three requirements of the informal marriage as stated above at the beginning of this blog. And, to prove the three requirements, one must introduce evidence on each point. Often, the testimony of witnesses and the parties to the marriage is crucial. A witness can testify that your common law spouse introduced him/her as your husband/wife in social situations. Other evidence to prove this element could include documents such as a tax return being filed as a married couple, or insurance policies listing one person as the other person's spouse. Additionally, there are other factors that are required in order to be informally married (and thereafter divorced) in Texas. For example, the couple must each be 18 years of age or older; they must not be related to each other according to law; and neither one can be already married to someone else.

 

  While there is no specific, strict statute of limitations on a divorce action involving a common law marriage, it is important to understand that Texas law states as follows: “if a proceeding in which a marriage is to be proved . . . is not commenced before the second anniversary of the date on which the parties separated and ceased living together , it is rebuttably presumed that the parties did not enter into an agreement to be married.” (Texas Family Code, §2.401) (emphasis added). In other words, the divorce case of a common law marriage should be filed within two years of separation, or it is presumed there was no agreement to be married (the first required element).  

  Moreover, because community property laws apply to an informal, or “common law” marriage, it is wise to discuss your particular situation with a family law attorney who can provide advice and counsel on these issues, including a potential division of all assets and liabilities that exist between the couple on the date of divorce.

  At Musemeche Law, PC, we’re ready and able to provide a full range of legal services and advice on common law marriages. Feel free to call today for an appointment.
By chris.spooner 20 Jun, 2017

  No, that's not a misprint. And, while lifetime spousal support after divorce is certainly not the norm, Texas courts do have the power and authority to order alimony (we call it spousal maintenance) if specific criteria are met, and the duration of time for the award can absolutely be unlimited under certain conditions.  

  In general, a spouse seeking alimony must be legally “eligible” to receive the maintenance support. When parties divorce in Texas, not only does the court divide community property, but it also has the discretion and power to order recurring payments from one spouse to the other in the event that the spouse seeking maintenance will lack sufficient property (including separate property) to provide for his/her minimum reasonable needs. Interestingly, there is no definition of “minimum reasonable needs” in the Texas Family Code. Accordingly, the courts are faced with a fact-specific analysis in each case. In this regard, courts generally consider evidence of the following expenses to be part of the spouse’s reasonable minimum needs: rent/mortgage, property taxes, automobile payments, utilities, gasoline, groceries, drugs and medicine, clothing, and child care costs.  

  Further, assuming a spouse satisfies the first element of proving their eligibility for post divorce maintenance, the spouse seeking alimony must also pass the second prong of the eligibility test by establishing one of the following four pathways to receive the support.


  1. Evidence that the requesting spouse is the victim of family violence resulting in a conviction or deferred adjudication that occurred within 2 years before suit was filed or while pending;
  2. Evidence that a disability exists which prevents the requesting spouse to earn sufficient income due to an incapacitating physical or mental disability;
  3. A marriage that has lasted at least ten years, and the requesting spouse is unable to earn sufficient income to meet his/her minimum reasonable needs; or
  4. The requesting spouse is caring for a disabled child which causes the spouse to be unable to earn sufficient income.

  Once both prongs of the eligibility test have been met, the court must determine the duration of support. There is a presumption that courts will limit support payments to the shortest reasonable period of time necessary for the spouse seeking alimony to earn sufficient income to provide for their own minimum reasonable needs. Indeed, the legislature has established certain periods of time for the maximum duration of support as follows:   if the basis for spousal maintenance is an act of family violence, or if the length of marriage is at least ten years, but less than 20 years, then the court may only allow support for a maximum period of five years. If the marriage was at least 20 years in length, but less than 30 years, then the duration of alimony can last no more than 7 years. If the marriage is 30 years or more at the time of divorce, then the alimony can be awarded for no more than 10 years.

    However, if the spousal maintenance award is based upon a spouse’s inability to earn sufficient income due to an incapacitating physical or mental disability -- there is no maximum length of time for the award of post divorce spousal maintenance.   Instead, the court maintains jurisdiction to order the support as long as the spouse meets the eligibility criteria.

  Finally, once it is determined that a spouse is eligible for maintenance, and the length of time has been set, the maximum amount of support to be awarded to the requesting spouse is based upon the following: either 20% of the obligor’s average monthly gross income; or $5,000 – whichever amount is less. There is no requirement that spousal maintenance completely eliminate a requesting spouse’s shortfall of their monthly needs.

  In conclusion, the amount of alimony to be awarded in a divorce is determined on a case by case basis, and the court is guided by a multitude of factors including the length of marriage and the actual needs of the requesting spouse. For these reasons, and because the court maintains jurisdiction to modify or terminate the alimony award even after the divorce is final, it is important to discuss your individual situation with a family law attorney familiar with these subjects.

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