Are you ready for a divorce? Part II

Are you ready for a divorce? But first, did you say “I do?”

After considering the facts in your case, you’ve either decided to file for divorce or, that’s already been decided for you since your spouse was just as unhappy, dissatisfied as you. In any event, there is a divorce in your future.

After you’ve chosen your attorney, one of the first questions that he should ask is: “How long have you lived in Texas?” This crucial because in order for a Texas Court to hear a divorce action one or more of the parties has to have lived in the State for at least six months and in the county for 90 days; this is called Jurisdiction and without it, the court does not have the power to hear a divorce case. Because of the jurisdiction issue, if you, your spouse, or even your child has not been in Texas for that magic six months, you will have to wait until that period of time has been met. There are some exceptions, but those are rare and very fact specific involving military personnel.

The second question is: “Are you married?” It seems simple that the answer would be assumed and obvious. But the truth is that that are two types of marriages recognized in Texas. The Formal Marriage is the most obvious and prevalent type. It’s the one where there is a formal wedding ceremony ranging from the “Cecil B. deMille” church or religious wedding production with the cast of thousands to the Informal Marriage. The latter is referred to generally as the “Common Law Marriage. Both the Formal Marriage and the Common Law Marriage are recognized as valid, legal marriages. Most family law attorneys are well versed with the differences because there are distinct, special issues arising in the case of the invalid Informal Marriage as opposed to the Formal Marriage.

I went to Law School in the 1970’s at the height of the Love Generation with its chants of “Make Love, Not War” and “Free Love and Nickel Beer”. The social mores were changing during those times, and cohabiting with the opposite sex was becoming more commonplace and open than ever before. I surmised in my then intellectually superior state as a Law Student that the only way out of a bona fide Common Law Marriage was by a legal divorce. The status of the law at that time fairly well supported that position with one case holding that an overnight stay in a motel room as Mr. and Mrs. Jones was sufficient to prove a Common Law Marriage with all the rights and duties appertaining thereto. Thus, I supposed, living together without the benefit of the license could create legal obligations that may not have truly fit with the scheme of “Make Love, Not War” and “Free Love and Nickel Beer”. Some call it the Doctrine of Unintended Consequences.

The law has progressed since then, and the proof of a Common Law Marriage is far more problematic now than in the early1960’sand 1970’s. However, parental rights and duties and the disposition of property interests are affected quite differently in situations where the Common Law Marriage is really a “live together and not be married” situation where there is no present intention to being married. The issues about children concerning paternity, custody and child support can turn on whether or not the parties were ceremonially married. Whether or not the parties were legally married can dramatically affect the characterization of property and therefore how it will be divided.

So, the second question is more than perfunctory; there is a legitimate concern that only an experienced family law attorney can answer.