Void Marriages

Normally in Texas, marriages are made to stick. If someone has a claims of being married, then the burden is on the other party to prove they weren't. In contrast, void marriages are legally invalid from day one. Do not pass go. Do not collect $500. In void marriages, neither party has a choice in reaffirming such a marriage because there exists a defect so grave, that the State of Texas will not permit the marriage under any circumstances.

There are two ways that a marriage is absolutely void in Texas. One is the Putative Marriage where one party is already married to a different person. (See previous posting). The other is that the parties are too closely related to each other. (TFC 6.201) The fancy word is "Consanquinity". (See also previous posting).

Remember that there are two types of invalid marriages: marriages that are void (discussed here) and those that are voidable (discussed in the next post). The practitioner should not be sloppy and plead the wrong type of case. The term "annulment" is often casually tossed around by the client and the attorney, but that is only for VOIDABLE marriages. A void marriage never was. It does not get annulled. It gets a declaration that it is void. Such void marriages are properly filed as "A Suit to Declae Void the Marriage of ___ and ___". Also remember that unlike a divorce, there is no 60 day waiting period after filing suit. It is a small favor from the legislature that you can get these muddled messes over quick.

Remember that any type of marriage dissolution case has the same considerations if there are children involved; i.e. kids from these relationships are not "bastardized" by these proceedings. You have to do a full Suit Affecting the Parent Child Relationship and assign all rights, duties, access, visitation, etc. (See future post).

The Un-Marriage: The Meretricious Relationship

The Meretricious Relationship is when parties never intended to get married, but have co-habitated together. Sometimes there are children born of this relationship and when the relationship breaks down, then issues of establishing parentage and setting parental rights and duties must be dealt with in a Suit Affecting Parent-Child Relationship or in a Suit to Establish Paternity. (To be discussed in a later posting). If there are no children involved then there may be issues of property division.

Some meretricious relationships last for many years and considerable comingling of financial resources can have occured. This describes many gay relationships.

Alimony (aka "maintenance") in the meretrious relationship is not avaliable to unmarried couples of any sex (TFC 8.001) Although there is no remedy for a partition of these comingled assets and debts under the Texas Family Code, the parties may find some relief under civil remedies of trusts, unjust enrichment, joint venture, or partnership.

Contractual Palimony is one option for unmarried couples to protect their economic interests. However, such contracts must be in writting and signed by the person obliged to the agreement. (TFC 1.108) Individuals interested in non-marriage cohabitation should consider entering into a Domestic Partnership Agreement.

For Houston area gay couples considering a cohabitation agreement or other related issues, I would highly recommend my friend Jerry Simoneaux and his firm of Nechman, Simoneaux and Frye, PLLC. www.nsflaw.com.

"Have You Met My Other Wife?: Putative Marriages

The Family Code doesn't talk about it, but there are two kinds of relationships that often happen. One is the "Putative Marriage" where the parties believe they are married, but they are not. The other is the "Meretricous Relationship" also know simply as "living together".

The Putative Marriage is where the couple believes they are married, but because of a defect in the process, they are not. I experience this in my practice more often than I would have thought possible. The typical case is that one spouse is already married, THOUGHT they divorced and then "married" another person. The couple may have been living together as husband and wife for years, but weren't ever "legally married" because the one spouse is still married to another.

Under the Family Code, the most recent marriage is presumed to be valid until challenged. Therefore marriage #2 takes precedent over marriage #1. The burden of proof of validity of the earlier marriage is on the spouse seeking to maintain the validity of marriage #1 as against marriage #2. This usually comes up in probate proceedings when two "widows" are contesting who should inherit from the same dead spouse.

If a couple finds they are in a Putative Marriage, the have two choices. If they want to break up, then can file a Suit to Delcare Marriage Void (TFC 6.307). If they want to stay together, the first marriage must be dissolved by filing a divorce suit on spouse #1. After the first marriage is dissolved, the second marriage is automatically validated as long as the couple continues to live together as husband and wife and represents to others that they are married. (TFC 6.202(b)).

If they want to break up, a spouse can receive alimony (maintenance)even in a void putative marriage as long as she or he did not have knowledge that the spouse was already hitched when they got "married". (TFC 8.060)

Also, the innocent putative spouse may also have the same rights to property division as a legal spouse. (Davis v. Davis, 521 S.W. 2d 603 (Tex.1975).