Common Law Marriages
I speak to potential clients with regularity who tell me that they are involved in a common law marriage. However, it seems like each person defines what a common law marriage is just a little differently. Let’s take some time to go through this issue and discuss how common law marriage is accomplished in Texas and what it means for you.
For the most part, the folks that come into our office to talk about common law marriage seem to think that if you are living with another person for at least a few months that constitutes a common law marriage. What being common law married actually accomplishes for that person could be anyone’s guess. But he or she is usually sure of their being common law married.
Common law marriages are formed informally, as in, there is no seeking of a marriage license and there marriage ceremony. Common law marriages can generally be classified as any marriage that lacks the signing and filing of a marriage license as well a marriage ceremony. Intent is a huge part of this equation. There must be intent on the part of you and your spouse-to-be that a marriage occur.
There are three requirements that must be in place for yours to be a valid common law marriage. As I mentioned a moment ago, you and your spouse-to-be must agree to be married. That decision to be married but be immediate. There can’t be any future plans to get married or a pact to marry one another if you aren’t already married by age 35. You and the other person must say to one another that you desire to be married and that your intent is to be married from that day forward.
Since you must intend to be married, you cannot argue that you got married by mistake or without knowledge of the circumstances. Basically, you cannot wander into a marriage. Either you get married as the result of a ceremony or you get married as the result of an agreement with your spouse to become common law married.
After agreeing to be married, you and your spouse must live together in the same residence as husband and wife. The hallmarks of living together as husband and wife seem to be things like maintaining the home together and engaging in habits and activities that married people participate in. There is no minimum length of time that you and your spouse need to reside together and that time period, however long, does not need to be consecutively.
The final requirement for a valid, common law marriage in Texas is that you and your spouse must hold yourselves out as a married couple to people that you interact with. Using the same last name as one another, calling each other husband and wife, having each other on insurance policies and listing your spouse on your tax return. This requirement prevents you and your spouse from entering into a secret marriage without anyone else’s knowledge. The marriage must be made known to everyone that you come into contact with, just about.
For your relationship to be a common law marriage, all of these requirements must be met at the same time. Once you have met all three requirements, you are common law married. Your marriage is just as valid as your neighbors and friends who got married by a priest, minister or judge. To divorce one another, you would need to file a divorce petition just like everyone else who is married.
What is community property? What is separate property?
Texas is among 13 states in the United States whose property law is based on the legal theory of community property. There are two general types of property in Texas, therefore: community property and separate property. Separate property is property owned or claimed by the spouse before marriage; the property acquired by the spouse during marriage by gift, devise or descent; and the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage. That comes straight out of the Texas Family Code.
Community property is much easier to define. Any property that is not part of either spouse’s separate estate is therefore considered to be community property. There is a presumption that all property at the time of a divorce or death is community property. This property is subject to being divided up in the divorce- either by you and your spouse in mediation or by a judge in a trial. We are talking about personal property (silverware! Video games! Dishes! Bed sheets!), real estate, cars/trucks/boats, bank accounts and retirement plans. This is a huge deal, in other words.
All property that is possessed by you or your spouse during the time of your divorce is presumed to be community property. I noted that to you a moment ago so I can tell you now that if you or your spouse want to make an assertion that a particular piece of property belongs in one of your separate estates then it is up to you to prove it. You would prove it by producing evidence that is offered and accepted into the record of your case by the judge.
Here is what most people going through a divorce hardly ever understand. I would say never understand (never-ever understand, even) but I was taught that speaking in absolutes can sometimes weaken your argument. However- it is my experience that people will hardly ever understand ahead of time that it does not matter whose name is on the title, loan or ownership documents as far as community versus separate property ownership is concerned.
Community property determinations will not be made purely by pulling out a document and looking at whose names appear on the dotted line. Sometimes that is relevant, certainly. But more important is the timing of the purchase of the item or conveyance of the property to you/your spouse from another person. If you have been contributing huge sums of money to your various retirement accounts since the start of your marriage it doesn’t matter that only your name appears on the mutual fund accounts or 401(k). Those contributions were made from your income which is community property. The retirement accounts, therefore, are also community property.
This is a huge concept for some people to understand. It’s often times the spouse who has worked rather than stayed home who just so happens to hold this view. Alternatively, the spouse who has stayed home for years and years taking care of kids or minding the home who is worried at the time of divorce that he or she (usually she) will walk away from things penniless. Neither person would be correct. Be sure to have your attorney walk you through this concept in greater detail so you understand what it means to you now and in the future.
Paternity issues- lots of questions for mothers and fathers
If you are a married woman who gives birth to a child, your husband is presumed under the law to be that child’s father. You and your husband could have been separated from each other for a long time and this presumption would still hold. You could even swear on a stack of bibles that another man is the father of the child- and the presumption would still hold true. Unless you are able to submit evidence to a court to counter this presumption, your husband will be presumed to be the father of your child.
Even if you are now divorced from your husband, if you give birth to a child your ex-spouse will be presumed to be that child’s biological father if you were pregnant at the time of divorce and your child is both before the 301st day after the date the divorce was finalized. Furthermore, if you married your husband after the birth of your child and your husband asserts that he is the father of your child he can become that child’s legal father by doing a few different things.
First, he can file his assertion of parentage with the bureau of vital statistics in Austin. Second, he can voluntarily have his name included on the child’s birth certificate as the father. Finally, he can promise you in writing that he will support the child financially and otherwise. If he does any of these things then his legal paternity can be established under the Texas Family Code.
There is another way to establish paternity for your child. If you live with a man on a continuous basis for the first two years of your child’s life and that man tells other people that your child is his son or daughter, then there is a legal presumption of paternity that applies.
If you are a woman you need to tell your attorney right away if you have any children. The next step is to tell the attorney how many kids you have and who the fathers of those children are. The last piece of the puzzle will be to tell your attorney whether or not you were married at the time that child was born. By telling your attorney this information she or he can figure out whether or not there will be any paternity issues in relation to your current divorce or child custody case. Factors relating to paternity can complicate an otherwise straightforward case, especially if either you or the presumed father deny paternity.
Much ado about child support
Child support calculations are pretty clearly outlined in the Texas Family Code. It is presumed that implementing the methods for calculating child support in the Code are what is in the best interests of your child. There are guideline amounts in the family code that detail what percentage of your income will be paid on a monthly basis in child support. If you or your child’s other parent disagree with the guidelines you would need to provide sufficient evidence to the judge in order to rebut this presumption.
How is child support calculated? It doesn’t take a mathematician to do the calculations, believe it or not. You would apply a certain percentage against your net monthly resources. The tough part is not arriving at the percentage (which is based on how many children you are responsible for), but in determining what net monthly resources are for you. If you don’t have any income other than from your job, you will need to examine your pay stubs with your attorney to figure this out.
I can tell you that net monthly resources includes sources of income like wages, salaries, commissions, overtime pay, tips, bonuses, self-employment income, rental income and retirement benefits. This goes well beyond your primary job’s income. If you work side jobs or have investments then your spouse will likely be entitled to taking this sources of income into consideration as well.
Once you do the math on these amounts, you would deduct social security taxes, federal income taxes, health insurance for your kids and any dues you pay to your union. Once you make these deductions then the net resources for your child support will be known. We will begin tomorrow’s blog post by going over what percentages apply to your situation based on how many children you have.
Questions about these common family law issues? Contact the Law Office of Bryan Fagan
The information that I have covered today with you is pretty common, bare-bones material in the world of family law. If you have any questions about how this impacts you and your children I recommend that you contact the Law Office of Bryan Fagan.
Our licensed family law attorneys offer free of charge consultations six days a week here in our office. These consultations are a great opportunity to ask questions and receive direct feedback about your particular circumstances and situation. Thank you for choosing to spend part of your day with us here on our blog and we hope you will join us again tomorrow.