Monday, May 04, 2015

Three Common Factors To Common Law Marriage

The following is a reprint of an earlier blog post.

Texas is one of the dwindling number of states that continue to recognize the informal or "common law" marriage. Basically it works this way: if you act like you are married, the state could consider you married even if you never got a license to marry or had a marriage ceremony.

The issue of common law marriage usually comes up when the practitioner is faced with a petition for divorce and there are property issues to be decided. If there are no property issues to divide, there has been no formal marriage, and neither party want to be married, it is usually just best to follow the KISS principal and "fagetaboutit".

In those cases where one side is trying to assert a community property interest in a putative "martial estate", the first issue you must deal with is: "was there a marriage?"

Under TFC 2.401(a)(1), you can have a court declare that a marriage exists if you have a written declaration of marriage. I can't imagine a real life scenario where this would happen, but if you can think of one, then I'd love to hear about it. I mean, after all, wouldn't you just get a marriage license?

The much more "common way" for a "common law" marriage is covered under TFC 2.401(a)(2). In it the following elements must be met for an informal marriage to exist:
  1. The parties agreed to be married;
  2. they lived together as husband and wife;
  3. they represented to others that they were married.
Remember that once established, the "common law" marriage is just a binding and valid as the formal, ceremonial kind.

3 Important Points About Your First Meeting With A Divorce Lawyer

Many people who are interested in seeing a divorce attorney have never been to an attorney before and aren't sure what to expect.  So here are three important points about your first meeting with a divorce lawyer.

1.  This is a relationship test.  

The purpose of the first interview in a divorce case is to determine whether the attorney and the client can work together.  The relationship between an attorney and his client can be a very sensitive one due to the nature of the personal information that has to be shared.  If an attorney and client wish to work effectively together, there must be a good natural feel to the communication flow.  You may be required to reveal some very embarrassing information to this person.  You should be sure this is a person you feel comfortable with.  You have to go with your gut on this one.  It is also the attorney's interview as well.  If the attorney thinks that your values conflict with his, he will decline to represent you.  I have turned down potential clients when I felt the their motives were destructive to themselves or their children.  I think most ethical attorneys would do the same.

2.  This may not be the right time.

Many times clients come in for an interview just to get general information.  It is not unusual for a client who has come into my office for information and I will not see them again for a long time- sometimes years.  Maybe they just want information to help them make a decision about their marriage.  Maybe they just want to be able to tell their spouse that they have been to a lawyer in order to get their spouse's attention.  On occasion I am hired to file a suit, but then the client doesn't really want to follow through to the final decree.   I try to spot these clients ahead of time and advise them to seek counseling as a first measure.

3.  If you are ready- so should be your attorney.

There are some clients who come to my office who are ready to file and follow through right away.  This may be because they are being forced to respond to a divorce suit filed first by their spouse, or because they have come to realize that the pain of remaining in the relationship is worse than the pain of divorce.  Either way, they attorney should be ready to draft responsive pleadings right away and handle any deadlines that exist.  If this is your case, you should bring any paperwork you have received from the court or a process server and be prepared for your lawyer to begin the longer process of gathering information and determining your goals and the best way to handle the case.

The initial attorney interview may be a new experience for some people, but it should not be viewed as an intimidating thing.  It is usually the first small step to a better life.