One of the interesting things about different generations is that they have different views and values regarding marriage. Whereas prior generations more or less got married in their early to mid-20s, we see that that is happening less and less frequently now. Rather, the younger generations are getting married in their late 20s to early 30s or not at all. A recent statistic I saw shows that more unmarried people live together today in the United States than married people. This isn't in stark contrast to families even a generation or two ago. Whereas marriage used to be the norm, it is quickly becoming the exception.
My point in telling you all of these things is to not judge one way or the other on the institution of marriage period. I certainly have my opinions, and I'm sure you do too. However, I tell you these things to present you with a backdrop for today's blog posts from the Law Office of Bryan Fagan. Specifically, I would like to discuss what can happen when two people decide to live together in a committed relationship but stop short of going to a religious official or judge to have a formal marriage ceremony. In other words, what are some potential impacts of common law marriages in the world of Texas divorce cases?
There are many reasons why a person may want to be in a committed relationship but not get married through a more formal marriage ceremony. A lot of people view weddings and marriage as not being worth the effort and stress. Those same people may think about the expense have a wedding and think that not only do they not have the money but that they have enough debt as it is that they do not want to borrow the money either. I have known people in my own life who have told me that they do not want to get married until they are completely out of debt. Well, I admire their ambition; it would be difficult to draw yourself completely out of debt to get married. This is especially true if you are not a king to get married in the first place.
Another reason why many people do not want to get married traditionally because they believe that if you get common-law married, you do not have to go through a divorce if you decide to move out or simply no longer be married to your significant other. Some people think of common-law marriages as a fancy form of a typical dating relationship. You Playhouse, you pay some bills together, and you can tell your friends and family that you were married. Meanwhile, secretly, you can get out of the marriage circumstances more simply than if he went through with the mirrored ceremony and had to get divorced.
However, the reality is that by not going through with a formal marriage ceremony, you may be positioning yourself for additional risks that you did not consider when the time came to decide whether to tie the knot with a marriage ceremony and exchanging vows. The subject of common law divorces is not one that we hear much about in our culture, but I can assure you that it is a reality and does carry with it significant challenges and risks. For that reason, we should consider not only what a common-law marriage entails but what happens when a common-law marriage breaches the conclusion. What do you need to consider if you are in this type of relationship with another person?
What is a common-law marriage?
When you lived together with a person you are in a romantic relationship with, consider yourselves as being married and hold yourselves out as being married to the community. You are common law married under the law in Texas. That is all it takes. There are a few requirements here and there that you need to bear in mind, such as continually residing with the other person. You cannot maintain one residence with your common-law spouse and then another residence on your own. Rather, you have to have one residence together with your significant other and remain in that home together for the duration of your relationship. Moving in and out as you see fit negates the primary elements of common-law marriage.
Another key part of this discussion is that all three elements must be in place simultaneously. You cannot live together and represent two others in Texas that you were married but not agree to be married At different times but be common law married. Once you have placed yourself in a situation where all three of these elements are in place, you are married under the law in Texas. Your marriage is as valid as any person who goes through with the traditional, ceremonial marriage.
What are some issues that you should be aware of if you find yourself in a common-law marriage?
Since Texas is a Community property state, I would like to begin by discussing this topic. Generally speaking, when people get divorced, it is assumed that a family court judge will order Justin's right division of the property acquired during the marriage if it comes to that. In Texas, it does not matter whose income was utilized to purchase property or who works more than the other person. All income earned during the marriage, with a few exceptions, counts as Community property. Therefore the assets and other property acquired with that income are also considered to be Community property.
Let's assume that you were married to your spouse for 20 years. During the duration of that 20-year marriage, you were the person in the marriage who went out into the world and earned income for your family. Meanwhile, your spouse was an expert homemaker and ran the household as well. You had children together, and your spouse was responsible for the day-to-day logistics of extracurricular activities, homework, and things of that nature.
After 20 years of marriage, the two of you decided to get divorced. The divorce court in your case presumes that the combined value of your Community property should be divided between you not based on whose income was used primarily to earn the assets and property but based on a Justin right distribution, which is fair considering the circumstances of your case. It doesn't matter for a trial who earned the income that was used to purchase the property. All that matters is who gets what in why. This is largely based on factors like your income earning potential, your health, your education, and the separate property that each of you came into the marriage with.
This may have come as a shock to you at the beginning of your relationship. You may have been in a position where you thought that engaging in a common-law marriage could avoid having to go through a property division. However, you quickly learned that getting divorced was necessary even in a common-law scenario. All of your planning and attempts to avoid the pains of divorce didn't go exactly as you planned. Now, you and your common-law spouse will be treated just like any other married couple by the courts. With this reality in mind, here are some of the issues you need to work through as you get a divorce from your common-law spouse.
You need to prove that you are in a valid common-law marriage.
In many situations where people are on the verge of ending a relationship, one person will believe that they're in a common-law marriage. At the same time, the other will consider their relationship to be a typical dating relationship. This can create problems for both parties, given that when one person believes they are in a dating relationship, there is no way to divide property in these circumstances. As such, the other person is in danger of losing out on Community property and a division of that property. It is up to the spouse who believes that they are in a marriage to prove the existence of that common-law relationship.
The difficult part about this is that when there is no marriage certificate, photos of a wedding ceremony, or anything like that, you run into a situation where you have to prove the existence of the relationship when nothing has been committed to paper. This is a difficult task where you will need to collect evidence that can be argued to be circumstantial. It is a reality of common law marriage situations that the parties we'll spend a fair bit of time arguing back and forth on whether or not they are in a common-law marriage or a more standard dating relationship. When a great deal of money is on the line, you need to have your ducks in a row and be prepared to present evidence to back your assertion.
Showing what you own to a judge or mediator
it is almost always the case that the spouse who stands to gain more from there not being a common-law marriage will argue against its existence. Typically, you will find that this spouse contributed more financially during the marriage and thus has more to lose. If you and your spouse were never common-law married, then those Community property laws would not apply. In that case, there would be no Justin right division of the property, and the financial contributions of your spouse would be able to continue to go to them solely and without division.
In that case, the name on a bank account or on the title 2 a piece of property would likely be what a court would look to when dividing up assets. If you're in a position where your partner purchased an item with their money and then titled the property in their name, then you are in a tough position as far as proving ownership. You may be able to make an argument that your partner purchased an item for you in their name because you have bad credit or could not qualify for financing. Any payments you made on the property, such as a vehicle, could be reimbursed to you. However, proving this can be tedious and difficult.
Now, imagine having to repeat the same process for every piece of property or asset in your life. That will become tedious, to say the least, and nearly impossible and some circumstances. The other aspect that we have not even really discussed is how property is oftentimes divided between persons in a divorce but so are debts. Involving debt in a common-law marriage means that if the relationship ends, you will have a circumstance where one of you is arguing against the common law marriage to avoid the other person's debts. In the same way that common law property is divided in a divorce, so is common law debt, arguing one way or another.
What about the family home? Who gets to stay?
One of the many concerns that people have when a relationship comes to an end is where they will live moving forward. Remaining in the same house as your partner is typically not an option. What can end up happening is that your partner may lock you out of your home without allowing you to collect your belongings or find a new place to live. This may seem like a relatively simple thing to fix by going through courts, but there may be problems associated with doing so if you are not in a common-law marriage period.
For instance, if you are married and have filed for divorce, if you are locked out of the home, then you would need to file a motion to hold the hearing on the subject to allow you to re-access the home. One spouse cannot lock the other out of the home and prevent entry without a court order. The difficult part if you cannot prove a valid common law marriage is that you are then put in a position where you have two prove your right to get into the home. While it is not impossible to do this, the reality is that it can certainly complicate matters.
For example, that supposes that your name does not appear on the mortgage or lease documents. In that case, you would need to prove to a court that you have a right to remain in the home just as much as you are a partner whose name appears on the documents. There are many theories in Texas that you can argue why you should access the home. However, it isn't easy to prove then ownership interests in a home or a landlord-tenant relationship when your name appears on any documents. This is not dissimilar from having to prove the existence of common-law marriage.
What about retirement savings?
One of the benefits of being married is taking part in your spouse's retirement income for your golden years. While you may have been the spouse who stayed at home to care for the children and home life, your spouse and their income were able to contribute to making your lives financially stable and saving up money for later. A spouse is obligated to list their partner as the payee on a retirement plan in some cases. However, an alternative beneficiary often does not need to be listed, and even if one does, it does not have to be your spouse.
This could put you in a position where you need to prove the existence of a common-law marriage in order 2 assert property rights to your spouse's retirement savings. If you cannot do so, you lose out, um, a significant amount of money which could harm you both now and into the future. It would be incredibly disheartening to find out that after an extended relationship that you consider to be a marriage, a family court judge rules that no marriage was ever actually in place. This would negate your right to take part in any of your spouse's retirement benefits and can put you in a bind without you having adequate time to prepare.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law and also about how your family circumstances may be impacted by the filing of a divorce or child custody case.