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Duties that you owe to your spouse in marriage

Many prospective clients who come in for a free consultation with one of the licensed family law attorneys with the Law Office of Bryan Fagan, PLLC, will do so with questions about their marriage. These folks are not necessarily looking to file for divorce. Still, they want to know whether or not an expectation regarding their spouse specifically and marriage is valid. If you are a person who finds yourself wondering if something your spouse said or a family member told you about marriage is accurate, then you ought to stick around and see if one of today's subtopics on this subject correlates to your particular situation.

Do you have to work if you are married in Texas?

What if, after you've taken your vows of marriage, your spouse suddenly refuses to go to work one morning. More days pass by, and your spouse tells you that she will not be returning to work- possibly for good. To that point, you had been a stay-at-home spouse taking care of the home and all of the responsibilities that come along with it. That was the understanding that you and your spouse had before you got married as well. Now, you have been married for a significant amount of time, and that decision has been forced upon you.

You may be asking: can you force your spouse to go back to work? As in, can you file a lawsuit against your spouse and ask a judge to move your spouse back into the workforce? After all, your spouse told you that she would be the primary income earner in your marriage. Now that promise has been broken. What are your rights regarding that promise?

If you and your spouse are married, living together, and not filing for divorce, then a judge cannot force either one of you to get a job to support the other. If you are familiar with family law courts and family lawsuits, then you know that the friends and neighbors that we have in our community do more than enough to keep these judges busy on any given day. The last thing a judge will want to do is weigh in on a private, family matter that does not relate to a law contained in the Texas Family Code.

After a divorce, what about a court forcing you to work in that situation?

A court cannot mandate that you find a job outside your home after a divorce. However, it can make it virtually sure that you do so. In situations where the judge determines that you owe a duty to your ex-spouse to support them for some time after the marriage, then you may be essentially forced into working to pay spousal maintenance. The consequences for the failure to pay the ordered amount of spousal maintenance every month could be found in contempt of court. Fines, penalties, and jail time come along with this particular finding of a court.

Can you sue your spouse independent of a divorce lawsuit?

Yes, you and your spouse can sue one another for various causes of action. If you and your spouse have engaged in a financial transaction of some sort where one of you operated in bad faith, then either of you may sue the other. You can often utilize this premise as a "fault" that led to your divorce. The result of citing a specific fault ground for your divorce may be that you can convince a judge to award you a disproportionate (greater than 50% share) of the community estate in your divorce.

If your divorce goes to trial, will you be able to testify against your spouse potentially?

Some folks are under the impression that there is still a law on the books that prohibits one spouse from testifying against the other spouse regarding communications they made to one another during their marriage. This is no longer the case, however. It is common for spouses to testify against one another in conjunction with their divorce cases in today's legal world. This is also true in most instances where you or your spouse have filed a lawsuit against the other, not in conjunction with a divorce.

What if you are not married to the person you are living with? Can you create a property agreement with that person that is enforceable in court?

Many people are involved romantically with a partner with whom they are not married. Various statistics will tell you that this is a more common form of cohabitation than cohabiting with your spouse, at least in the United States. The law does not treat unmarried persons living together as being married. For instance, the community property rules in Texas would not apply to you and your partner unless you qualify as being common law married. That is a topic for another blog post, however, and for clarity and brevity, we will assume moving forward that you and your partner are not married- common law or otherwise.

However, if you and your partner are willing, you can agree on property that can be enforceable in a courtroom. This type of contract would be governed in many ways by general contract law rather than the laws regarding the family. If you and your partner choose to agree on what bills you or your partner will pay or what share of specific property each of you owns relative to the other person, then a Texas court will find that to be an enforceable agreement in most circumstances.

Remember that the general guidelines I gave in yesterday's blog post on premarital agreements would typically hold in situations involving you and your unmarried partner. It is always best for both of you to have an attorney advising you and to have that agreement put in writing. An oral contract may be enforceable, but it will take time, money, and lawyering to have a court see it that way. There must be sufficient consideration for the agreement to be held to be valid. That means both sides but give and take in the contract.

What about an exchange of the home for support in an unmarried relationship? Will this be held to be valid by a court?

From my experience and knowledge, it is unlikely that a court would find this a valid and enforceable agreement. You probably won't get a promise like this from your partner in writing. Usually, this type of promise is also based on your relationship continuing. Reasonably vague, oral promises like this are unlikely to be enforced by a court, barring other circumstances that I couldn't consider in a blog post.

The other consideration I would want you to take in is the age-old bargain of "financial support in exchange for sexual relations." In my opinion, it would not be a stretch for a court to assume that this was the sort of agreement that you and your partner hatched together. The look and the feel of it are close to something illegal. Even if this was not your intent, a court could easily read this into your situation and declare the agreement void.

All told, if you and your partner contract an exchange of property that has a specific, tangible value to it, that is usually the basis for an enforceable agreement. Once you get into a situation where you ask your spouse to pay you for an intangible, hard to quantify or value service, you get into the zone of unenforceability.

Money and Marriage- tomorrow's blog post topic

Please come back to our blog tomorrow to discuss the popular topic of money and marriage. If you are interested in learning more about the impact of these subjects on one another, then you cannot do any better than that blog post.

If you have any questions about today's blog post subject matter, please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations six days a week with a licensed family law attorney where your questions can be addressed and answered.

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