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Do I need a Divorce

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Zigner

Senior Member, Non-Attorney
It does. In every state of the U.S. you may only be married to one person at at time. Entering into a second marriage while still married to the first spouse is the crime of bigamy. It also makes the second marriage void. So he might be subject to criminal prosecution if, in fact, the two of you entered into a common law marriage while he was still married to someone else.
By statute, a common law marriage can't be created if one of the parties is married to someone else, so the question of bigamy shouldn't arise...

Sec. 2.401. PROOF OF INFORMAL MARRIAGE. (a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:

(1) a declaration of their marriage has been signed as provided by this subchapter; or

(2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.

(b) If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.

(c) A person under 18 years of age may not:

(1) be a party to an informal marriage; or

(2) execute a declaration of informal marriage under Section 2.402.

(d) A person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party to the informal marriage or declaration of an informal marriage, as applicable.

https://statutes.capitol.texas.gov/Docs/FA/htm/FA.2.htm#E
(Your thoughts?)

If you and he misrepresented to the state that the two of you were married when you did the adoption when, in fact, you were not married, that too may be criminal and could get you both prosecuted.

It's good that you are looking now for a family law attorney to help you sort this mess out. The sooner you fix whatever problems may exist here, the better.
I definitely agree with this, especially now knowing that one of the parties is already married to a third party.
 

Taxing Matters

Overtaxed Member
By statute, a common law marriage can't be created if one of the parties is married to someone else, so the question of bigamy shouldn't arise...
(Your thoughts?)
It's still bigamy if one purports to create a common law marriage when one is already married to someone else. The Texas legislature specifically covered that in the bigamy statute, Texas Penal Code § 250.01:

Sec. 25.01. BIGAMY.

(a) An individual commits an offense if:

(1) he is legally married and he:
(A) purports to marry or does marry a person other than his spouse in this state, or any other state or foreign country, under circumstances that would, but for the actor's prior marriage, constitute a marriage; or
(B) lives with a person other than his spouse in this state under the appearance of being married; or
(2) he knows that a married person other than his spouse is married and he:

(A) purports to marry or does marry that person in this state, or any other state or foreign country, under circumstances that would, but for the person's prior marriage, constitute a marriage; or
(B) lives with that person in this state under the appearance of being married.

(b) For purposes of this section, "under the appearance of being married" means holding out that the parties are married with cohabitation and an intent to be married by either party.


(bolding added). So even though the statute says one is prohibited from creating a common law marriage when the person is still married to another, it is bigamy to nevertheless create the appearance of being married by common law when one is already married to another.
 

Zigner

Senior Member, Non-Attorney
It's still bigamy if one purports to create a common law marriage when one is already married to someone else. The Texas legislature specifically covered that in the bigamy statute, Texas Penal Code § 250.01:

Sec. 25.01. BIGAMY.

(a) An individual commits an offense if:


(1) he is legally married and he:
(A) purports to marry or does marry a person other than his spouse in this state, or any other state or foreign country, under circumstances that would, but for the actor's prior marriage, constitute a marriage; or
(B) lives with a person other than his spouse in this state under the appearance of being married; or
(2) he knows that a married person other than his spouse is married and he:

(A) purports to marry or does marry that person in this state, or any other state or foreign country, under circumstances that would, but for the person's prior marriage, constitute a marriage; or
(B) lives with that person in this state under the appearance of being married.

(b) For purposes of this section, "under the appearance of being married" means holding out that the parties are married with cohabitation and an intent to be married by either party.

(bolding added). So even though the statute says one is prohibited from creating a common law marriage when the person is still married to another, it is bigamy to nevertheless create the appearance of being married by common law when one is already married to another.
Thanks for that info Taxing!
 

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