Texas Common Law Question

[Shepx]

I am a resident of Texas

I've read every post in this forum, and I see that a couple members are quite knowledgeable about Texas Family Law.

I have a situation that I rarely see addressed.

I lived with a woman in Texas for a couple years. We intended to marry after buying a house and car and basically establishing ourselves. We have no children. We earn identical salaries.

The three criteria in Texas that a couple must meet to be considered common law married:

1) Must agree to be married
2) Must hold out to others etc....
3) Must live together as husband and wife

The first criteria we flat fail. We never agreed that we were "married", or to be married, or to be husband and wife. Our intention was to be formally married when we could afford it.

The second criteria we pass, as we filed married/joint returns and had joint bank accounts.

The third criteria we pass, obviously.

We separated last October. She is primary on the home and I am a co-signer. Same for the car, except that it was a lease.

She wrecked her (old) car and bought a nice little SUV.

She threatened me with a "grounds" divorce if I did not get the car refinanced in my name only, to get out of the lease somehow to get her name off it. The threat was inconsequential to me, but I did want the car in either her name or mine, so that neither of us were responsible for it, in case one or the other party defaults.

I did manage to do that.

The home is on the market. We decided (without much basis, I admit) that a judge would probably tell us to sell it and split the profit or loss, were we to file for divorce. So that's where we are now.

Except that I want to get married now. I realize that a case could be made either way in a court of law in this State.

How can I proceed? Without a clear-cut black and white law, and without one party or the other filing for divorce (now)...how can one who's been in an informal relationship be confident that they are not committing bigamy?

Can any document drawn up by an attorney or by we ourselves serve as binding affadavit that we, for example, never intended to be married? (That we don't meet all three criteria?)

What in the heck do people do in these cases, short of simply paying for a divorce and dispensing with the matter?

And if we do that, what is a judge likely to instruct us to do with this house? Neither us could possibly afford the mortgage payment alone.

If two people insist that they didn't agree that they are married, and neither wishes to file a suit, are we in fact unmarried under Texas law? If so, how can we go about solidifying this position and protecting it from future claims by either of us?

Or did the joint tax returns already ruin any chance?

Many thanks,
Shep

 

[Boxcarbill]

I am a resident of Texas

I've read every post in this forum, and I see that a couple members are quite knowledgeable about Texas Family Law.

I have a situation that I rarely see addressed.

I lived with a woman in Texas for a couple years. We intended to marry after buying a house and car and basically establishing ourselves. We have no children. We earn identical salaries.

The three criteria in Texas that a couple must meet to be considered common law married:

1) Must agree to be married
2) Must hold out to others etc....
3) Must live together as husband and wife

The first criteria we flat fail. We never agreed that we were "married", or to be married, or to be husband and wife. Our intention was to be formally married when we could afford it.

The second criteria we pass, as we filed married/joint returns and had joint bank accounts.

The third criteria we pass, obviously.

We separated last October. She is primary on the home and I am a co-signer. Same for the car, except that it was a lease.

She wrecked her (old) car and bought a nice little SUV.

She threatened me with a "grounds" divorce if I did not get the car refinanced in my name only, to get out of the lease somehow to get her name off it. The threat was inconsequential to me, but I did want the car in either her name or mine, so that neither of us were responsible for it, in case one or the other party defaults.

I did manage to do that.

The home is on the market. We decided (without much basis, I admit) that a judge would probably tell us to sell it and split the profit or loss, were we to file for divorce. So that's where we are now.

Except that I want to get married now. I realize that a case could be made either way in a court of law in this State.

How can I proceed? Without a clear-cut black and white law, and without one party or the other filing for divorce (now)...how can one who's been in an informal relationship be confident that they are not committing bigamy?

Can any document drawn up by an attorney or by we ourselves serve as binding affadavit that we, for example, never intended to be married? (That we don't meet all three criteria?)

What in the heck do people do in these cases, short of simply paying for a divorce and dispensing with the matter?

And if we do that, what is a judge likely to instruct us to do with this house? Neither us could possibly afford the mortgage payment alone.

If two people insist that they didn't agree that they are married, and neither wishes to file a suit, are we in fact unmarried under Texas law? If so, how can we go about solidifying this position and protecting it from future claims by either of us?

Or did the joint tax returns already ruin any chance?

Many thanks,
Shep

The only way to " solidify this position and protect it from future claims by either of you" is to obtain a formal divorce. That's it. Until that happens, either of you can assert that there was an informal marriage and element number 1 is presumed upon proof of elements 2 and 3 (but add in the state of TX to #3). Now, if a proceeding to prove an informal marriage is not commenced before the second anniversary of the date on which the parties separate and cease living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.

Get the divorce. Sixty days must elaspe between the filing of the Petition for Divorce and the date that the Judge signs the decree. Then there is a 30 day waiting period before either of you can remarry anyone other than each other.

No children and agmt of the parties regarding division of property and debts should make this short, sweet and cheap. But if you two get into a dispute over he gets the toothpaste and who gets the dental floss, expect the cost to go way up and the time table to go way up

 

[Shepx]

After posting, I happened to search the Family Law General section and found a very similar question. It was answered by you. I noticed that you also are located in Texas, and that you put forth that criteria 1 is presumed if 2 and 3 are true.

So, I figured by then that I would get the same answer and that it's recommended I dispense with the uncertainty and simply divorce. I also hoped you'd answer because you seem quite knowledgeable and willing to share it.

I will take your advice. I had posed the same question on an immigration related forum that focuses mainly on K-1 Visa petitioners, which I will soon be. It was advised that I do the same thing...seek either a determination under the Texas Declaratory Judgment Act that I'm not married and alternatively a divorce.

Does that sound about right to you?

Also, if you please...this house. Can you hazard a guess what the judge will order us to do with it? Neither of us could afford the mortgage payment (assuming we divorce). Currently, she lives elsewhere, but we are splitting the mortgage payment. We are very anxious to get it sold, as you can imagine.

I thank you kindly,
Shep

 

[Boxcarbill]

After posting, I happened to search the Family Law General section and found a very similar question. It was answered by you. I noticed that you also are located in Texas, and that you put forth that criteria 1 is presumed if 2 and 3 are true.

So, I figured by then that I would get the same answer and that it's recommended I dispense with the uncertainty and simply divorce. I also hoped you'd answer because you seem quite knowledgeable and willing to share it.

I will take your advice. I had posed the same question on an immigration related forum that focuses mainly on K-1 Visa petitioners, which I will soon be. It was advised that I do the same thing...seek either a determination under the Texas Declaratory Judgment Act that I'm not married and alternatively a divorce.

Does that sound about right to you?

Also, if you please...this house. Can you hazard a guess what the judge will order us to do with it? Neither of us could afford the mortgage payment (assuming we divorce). Currently, she lives elsewhere, but we are splitting the mortgage payment. We are very anxious to get it sold, as you can imagine.

I thank you kindly,
Shep

I wouldn't began to speculate on immigration law since I know nothing about it. But my recommendation is divorce, not declaratory judgment . I cannot see any Judge allowing a party to assert themselves marrried/filing jointly for tax purposes and receiving the benefit therefrom and then the same parties come into court and claim that the informal marriage statute doesn't apply to them because they never "intend to be married."

The court is likely to tell you the following. "Intent" is measured objectively by the parties' actions. In this case both parties held themselves out to others as married, including both signing a tax return under penalty of perjury. You cannot now come into court and claim the secret intent ( ie. subjective intent ) was not to be married. One cannot claim one position, married filing jointly, when it's to their benefit and then later come into court , no intent to be married, when it is no longer to their benefit to be married and request that the court extract them from a situation of their own creation (ie. declare that they never intended to be married). The law requires that one takes the bitter with the sweet.

The court will have no problem with the sale of house. The parties already have the property on the market; they have already agreed (hopefully) as to the agent and sales price and how the profits, if there are any, will be split after all expenses and the balance of mortage is paid.

 

[Shepx]

Thanks, Boxcarbill. I do want to make this entire process completely aboveboard. Excellent advice.

I have consulted with an attorney already and he will present her with a waiver which, hopefully, she will sign.

Cheers,
Shep

 

[funai]

I'm by no means an expert in the matter but I have been in the same situation you're in, common law marriage in Texas. I agree with boxcarbill that you should get the divorce. I got a divorce and had it stated in the divorce agreement that my ex spouse relinquished rights to the house. This was agreed upon by us though and I could afford to keep the house myself. If we didn't agree on this matter we would have had to sell and divide the remaining profits after payoff. If the divorce is uncontested then it should be fairly short and simple. As for the vehicle I also had the ex spouse relinquish rights to my truck, so if the suv is in your name you may be able to do that if the other spouse agrees.

 

[Shepx]

Thanks funai, it's nice to hear from someone who experienced the same situation. My lawyer has shipped a petition to me, which I'll receive in the morning, as a matter of fact. Now I just hope the "ex" will agree not to contest. I really don't see any way which she might benefit by contesting, other than spite. That's always possible.