Articles Posted in Marriage

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Many people ask: Can my children decide where they want to live in a divorce? There are many ways for a court to consider children’s input about where they want to live.

The first way is simply allowing children to talk to the judge. Section 153.009 of the Texas Family Code allows a parent to request that a judge interview the child in chambers to determine the child’s wishes regarding certain aspects of custody. If a child is over the age of 12, it is mandatory that the judge interview the child on the request of a parent. A judge may also interview a child under age 12. It is important to know that 12-year old children cannot actually decide where they where they want to live. They will not be providing the “final say.” Instead, the child’s wishes will just be one factor that the Court considers in addition to other important information. Another thing to keep in mind is that this process can be traumatic for children. Sitting in a judge’s chambers can be very intimidating for a child, and a child could be negatively impacted by the pressure of such a weighty decision. However, many times, a child’s input can be very important in a child custody dispute, and so there are other means to obtain the information indirectly.

Another way to get a child’s input in child custody litigation is through a Child Custody Evaluation. In Texas, the only mental health professional that may make recommendations as to possession and conservatorship for children is a child custody evaluator. The Texas Family Code provides very detailed requirements for a child custody evaluation, which includes interviews of each parent and anyone living in a house with the child, interviews of the child, and observations of the home environment and each parent’s interactions with the child. The child custody evaluator will therefore be able to talk to children about where they want to live, and will do so in conjunction with a much broader study into the children’s home environment and what will ultimately be in the best interests of the children.

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What happens to the engagement ring if someone calls off the wedding?

KELLY AND BETSYS RING PHOTO
Unfortunately, before some engaged couples can make it down the aisle to say “I do”, someone says “I don’t”. The issue of who gets to keep the engagement ring often surfaces during this heartbreaking time.

An engagement ring is a gift and the law requires three elements to constitute an irrevocable gift:

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Alex Graves, award-winning director of “The West Wing” recently finalized his divorce from his wife of 19 years. Pursuant to the final order, the spouses’ property was divided evenly. Does the State of Texas mandate a fifty-fifty division of property upon divorce? The short answer is “no.” Continue reading →

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I know what you’re thinking…. “I’m already married; how is it not too late?” Don’t worry; the solution is a postnup! The Texas Family Code allows for couples to enter into a postnuptial agreement (or marital property agreement), which will offer many of the same protections and advantages that a prenuptial agreement offers.

Current Property. At the time of marriage, both spouses often have separate property interests and liabilities that were acquired prior to marriage. Without a prenup, the spouses’ separate property estates often become commingled and indistinguishable from the community estate of the spouses that begins upon marriage, especially if the spouses have been married for a substantial period of time. For example, during marriage, a spouse may inherit a large estate from a relative, gifts, buy a house, sell or trade property, or put separate property money in the same bank account. Although you and your spouse did not execute a premarital agreement, it is not too late to distinguish your separate property in a marital property agreement.

Chapter 4 of the Texas Family Code, Subchapter B, outlines the statutory requirements and guidelines for a marital agreement. Section 4.102 states:

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In light of the specific issues that are faced by litigants in family law cases, the District Courts of Dallas County have promulgated a series of orders (collectively the “Dallas County Standing Order Regarding Children, Pets, Property and Conduct of the Parties”) that applies in every divorce suit and every suit affecting the parent-child relationship that is filed in Dallas County.  The Courts have determined that the Standing Order is necessary “because the parties, their children, and the family pets should be protected and their property preserved while the lawsuit is pending before the Court.”

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The legalization of same-sex marriage may only be a few months old, but Texas’ informal marriage laws may provide for marriage recognition dating back decades. On June 26, 2015 the United States Supreme Court issued its ruling in Obergefell v. Hodges, legalizing same-sex marriage in every state of the Union. Since the rendering of the Court’s ruling, counties across the state of Texas have issued thousands of marriage licenses to same-sex couples. Upon receipt of a marriage license, these couples become eligible to enter into formal marriage. However, Texas also recognizes informal marriage, frequently referred to as common law marriage. Texas allows parties to an informal marriage to hold, as their legal wedding date, the earliest date at which all statutory requirements of an informal marriage were satisfied. What does this mean for same-sex couples who satisfied the statutory requirements before the legalization of same-sex marriage in Texas?

Under the Texas Family Code, an informal marriage may be proved by evidence that: (1) a declaration of marriage has been signed; or (2) by showing that the parties agreed to be married and after the agreement they cohabited together, in Texas, as a married couple, and represented themselves to others, in Texas, to be married. (see Texas Family Code 2.401). Upon satisfaction of the second prong, the couple may file a declaration of marriage and list, as their date of marriage, the earliest date at which all requirements were concurrently satisfied. Of course, same-sex couples are now afforded the ability to enter into informal marriage. The question is, however, will same-sex couples who satisfied all requirements of the law be allowed to declare their marriages to a date prior to June 16, 2015?

Initially, it was believed that state officials would hold that same-sex common law marriages could not be dated before June 26, 2015, as same-sex marriages were void ab initio under the law. However, with respect to a recent declaration of marriage filed by a same-sex couple in Tarrant County, Texas, the Texas Department of State Health Services stated that “Applicants, regardless of gender, may apply for an informal marriage license using any date applicable to their relationship.” Accordingly, this Tarrant County couple was allowed to date their informal marriage to 1992.

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Friday, June 26, 2015, was unquestionably a historic day in the realm of family law, constitutional law, and for the country as a whole.  On this day, a majority of the Supreme Court of the United States held that the Fourteenth Amendment of the U.S. Constitution requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.  Justice Kennedy, who delivered the majority opinion of the Court, was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan in this momentous decision.   Continue reading →

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There has been a lot of talk in this country lately about recognition of same-sex marriage and same-sex divorce, but what about recognition of foreign divorces?  In the melting pot that is the United States of America, divorce from foreign countries and their applicability to Texas family law cases are becoming increasingly common issues that are being addressed by trial and appellate courts in the Lone Star State.

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