Common law marriage divorce, one party dies before it's settled.

[kcummins]

What is the name of your state (only U.S. law)? alabama

I posted a longer thread on the will & probate boards.

My father passed away several months ago and my brothers and I can not touch any of my fathers assets (except pay his debt of coarse.) B/c his ex- girl friend started filing a common law marriage divorce suit a year ago. They did not file taxes together nor did they get mail at the same place.
My fathers lawyer is now our (my siblings and I) lawyer, but he has not given us a date for when her hearing is going to take place. We are told the court must first rule whether she was a common law wife, and then how much she should get etc..

Should we get another lawyer? How long does it usually take to resolve the divorce aspect of this? And has anyone heard of any other similar cases? I feel like I should know more or be doing more to secure my inheritence and we are all going broke paying his debt and funeral costs. (His ex- girl friend and ex-wives got money through life insurance policies but none of them have helped w/ a cent of the funeral costs.)What is the name of your state (only U.S. law)?

 

[mistoffolees]

What is the name of your state (only U.S. law)? alabama

I posted a longer thread on the will & probate boards.

My father passed away several months ago and my brothers and I can not touch any of my fathers assets (except pay his debt of coarse.) B/c his ex- girl friend started filing a common law marriage divorce suit a year ago. They did not file taxes together nor did they get mail at the same place.
My fathers lawyer is now our (my siblings and I) lawyer, but he has not given us a date for when her hearing is going to take place. We are told the court must first rule whether she was a common law wife, and then how much she should get etc..

Should we get another lawyer? How long does it usually take to resolve the divorce aspect of this? And has anyone heard of any other similar cases? I feel like I should know more or be doing more to secure my inheritence and we are all going broke paying his debt and funeral costs. (His ex- girl friend and ex-wives got money through life insurance policies but none of them have helped w/ a cent of the funeral costs.)What is the name of your state (only U.S. law)?

Why do you want another lawyer? What makes you think this one isn't doing a good job?

It sounds like he's right - you can't do anything about the estate until it is determined whether he has a wife or not. And you have little to no control over the hearing date (you can sometimes have it delayed, but you can't normally speed it up).

If they filed taxes separately and didn't get mail together, then it's unlikely that she will be declared a common law wife. In AL, "A valid common law marriage exists in AL when there is capacity to enter into a marriage, present agreement or consent to be husband and wife, public recognition of the existence of the marriage, and consummation." It doesn't sound like they meet the public recognition part.

If your current attorney has family law experience, particularly with common law, then stick with him. If he's an estate attorney without divorce experience, then ask him about brining in a family law attorney to handle that part of it.

Also, what makes you think you're responsible for paying his debts? That is the responsibility of his estate and his executor should be handling it.

 

[Zigner]

And, just to be clear. If it's determined that there WAS a valid "common law" marriage, then there won't be a divorce.

 

[LdiJ]

I will re-emphasize the point that you are not responsible for paying his debts. His estate is responsible for that and the executor should be paying the debts from his estate.

 

[kcummins]

Thank you for everyone that gave me advise. I have been told we need a probate lawyer. We currently are using my fathers lawyer and he advised us to stayout of it. But a question I have is how does the state decide if they had a common law marriage? I am sure her friends will say that he called her his wife so how do we tell them thats crap, seeing as how he's dead and can't speak for himself. She has called my older bro and attempted to "settle'' but he told her to take a hike w/out consulting w/ the rest of us. And as far as executer my eldest brother has been handeling the debt ,we were told by my fathers lawyer that we are not allowed to sell anything or even get into his deposit boxes untill the case is settled with the x-girl friend. I should have added that he had a totally diffrent fiance when he passed. So you can see how confusing this is to us children, my father passed suddenly and was not very old at all,my youngest brother is still in High School.

 

[mistoffolees]

Thank you for everyone that gave me advise. I have been told we need a probate lawyer. We currently are using my fathers lawyer and he advised us to stayout of it. But a question I have is how does the state decide if they had a common law marriage? I am sure her friends will say that he called her his wife so how do we tell them thats crap, seeing as how he's dead and can't speak for himself. She has called my older bro and attempted to "settle'' but he told her to take a hike w/out consulting w/ the rest of us. And as far as executer my eldest brother has been handeling the debt ,we were told by my fathers lawyer that we are not allowed to sell anything or even get into his deposit boxes untill the case is settled with the x-girl friend. I should have added that he had a totally diffrent fiance when he passed. So you can see how confusing this is to us children, my father passed suddenly and was not very old at all,my youngest brother is still in High School.

You already got the answer to this. The state will determine whether it's a common law marriage by the rules for that state. They will look at things like whether they presented themselves as married (not just what friend say, but do bills come to the house addressed as "Mr. and Mrs. X". They will consider whether they filed their income taxes as married. If he had publicly stated that he was engaged to someone else (for example, if they had made wedding plans, rented a place, booked time at a church, etc), that will argue against the common law marriage.

Your father's estate's lawyer is correct. You need your own lawyer. The estate's lawyer can not represent both you and the father and you can not expect him to give you advice because that creates a conflict of interest. Get your own attorney - preferably someone working for a firm which does both probate and divorce work. Your attorney could be either a probate attorney or a divorce attorney, but they need to have ready access to the other one.

As for the debt, I'm not sure that your father's lawyer is correct. The executor is allowed to settle debts of the deceased, whether he was married or not. I don't see how the disputed common law marriage situation changes the executor's obligation to pay bills, but ask your own lawyer. In any event, you should not be paying the father's debt out of your own pocket. That is the responsibility of the estate. If the estate attorney is correct and the money can't be touched, then the creditors will sue the estate and get their money from the estate. It is not the children's responsibility.