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Texas Family Law FAQs

What is Common-Law Marriage?

Under the common law marriage doctrine, you are considered legally married, despite not having a marriage license, a ceremony or a marriage certificate, if you meet specific requirements listed in the statutes of the jurisdiction where you live. The benefits of common law marriage include the right to inherit upon the death of a spouse and the right to spousal support and an equitable division of property should the marriage terminate. The jurisdictions that recognize common law marriage are Alabama, Colorado, District of Columbia, Georgia, Idaho, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas and Utah. In addition to these states, some other jurisdictions will recognize a common law marriage if it was valid in one of the (common-law) states and meets the statutory requirements in those states, even if it is a jurisdiction that does not have a statute that provides for common law marriage.

The statutory requirements for common-law marriage may differ depending on the jurisdiction. However, many states have similar basic requirements such as:

  • Consent of the parties to be husband and wife
  • Mental capacity for consent (including minimum age requirements)
  • Cohabitation (continuous in many jurisdictions)
  • Parties holding themselves out to the public as a married couple
  • Intent of couple to be married

In some states, the couple must also sign a form indicating their agreement to live as a married couple and their intent to abide by commonly held marital duties and obligations. Other states recognize common law marriage between couples only before a certain date. For example, in Georgia, a couple must have entered into a common law marriage prior to January 1st, 1997, anything after that date will not be recognized as a marriage by the state and will not be enforceable or valid. Yet in other states, common law marriages are only recognized by the state upon the death of one of the spouses. If the common law marriage is valid in the state, it will be considered a marriage for inheritance functions only.

Ending a Common-Law Marriage

Even though some states recognize common-law marriage, there is no common-law divorce those states. If a couple married at common-law wishes to terminate their marriage, they must do more than stop living as husband and wife to consider the marriage over. The marriage may not end the same way it was created, instead, there must be a formal procedure and legal process. In most states, the termination of a legal “ceremonial” marriage and a common-law marriage are the same. Parties must file a complaint with the court to terminate their marriage; forms may be for divorce, dissolution of marriage or annulment depending on the state law and the situation. The specific requirements vary by jurisdiction and are contained in state statute. The divorce complaint may also include provisions for distribution of property or assets, spousal maintenance or alimony and custody. It is important to speak to an attorney in your jurisdiction to learn more about the laws regarding common-law marriage and termination of common-law marriage in your state.

What is the Difference Between Marriage and Cohabitation?

Marriage may not be right for everyone. Some couples, either by choice or because they have no other option, live together without the benefit of a legal union. There are legal differences between marriage and cohabitation relationships, some of which are summarized below.

Marriage

Marriage requirements vary from state to state. Most include that spouses be of opposite sex; however some states now allow marriages between individuals of the same sex. Other general requirements include a license, a waiting period, blood tests, minimum ages and a ceremony officiated by a clergyperson or an officer of the court and witnesses. When a marriage ends, it must be ended by a formal, legal divorce or annulment process that can be costly, time consuming, complicated and emotionally draining. Divorcing spouses also have the obligation to divide their property by legally prescribed methods.

When a married couple divorces, the wage-earning or higher-wage-earning spouse may have the obligation to provide support for the other spouse upon separation or divorce. Likewise, after separation or divorce, the non-custodial parent generally is legally obligated to help financially support the children of the marriage. Children of the marriage may be biological or presumed. Children born during the marriage are presumed to be the offspring of the husband and wife. Children born to married couples must be financially supported during the marriage.

Married spouses also have the legal right to receive information about the other spouse or make decisions if the other spouse is not able to. If one spouse becomes ill or incompetent, the other spouse generally has the right to make decisions on the ill spouse’s behalf. When one spouse dies, the other spouse has the legal right to inherit a portion of the deceased spouse’s estate.

Cohabitation

Cohabitation may be entered into at any time, by individuals of any age or gender, without formal requirements. The relationship may be ended simply and informally upon the agreement of the parties. However, the emotional costs may be the same as or similar to those experienced at the end of a marriage. Dissimilar to marriage, when a relationship concludes, the parties may divide the property however they choose. Absent statutory guidelines, as in divorce, the couple must reach a mutual agreement.

Furthermore, in contrast to divorce, couples who live together usually do not incur the obligation to support each other after the relationship ends, unless they have entered into a contract providing otherwise. If the couple has a child, support may be an issue. The father of a child born to unmarried cohabitants is not entitled to a legal presumption of paternity and may have to establish his paternity through blood tests and a legal action. If the cohabitating couple has not signed an agreement signifying the child’s father, paternity must be established in order to compel child support payments. If parentage is established, the non-custodial parent has the same legal obligation to support his or her children as legally separated or divorced parents

Moreover, there are no survivorship rights between cohabitating individuals as there are between married couples. No matter how close the bond or how long the relationship has existed, a cohabitant may lose out to immediate family members when it comes to making decisions for an incapacitated unmarried partner, unless a general power of attorney and health care power of attorney give that authority to the cohabitating partner. As follows, when one cohabitant dies, his or her property will pass to whomever is named in the will or, if there is no will, to family members according to the laws of intestate succession. The surviving partner has no claim to the estate unless he or she was named in the deceased partner’s will.

What is Collaborative Family Law?

Collaborative law was created as an alternative to traditional litigation. Litigation can be expensive, time consuming and confrontational for all parties involved. Family law issues are often particularly emotional and since children are often involved, the traditional court process has been viewed as negative and possibly harmful. Family law issues range from divorce, spousal support and asset division to child issues such as custody, support and visitation. When trying to reach an agreement regarding family law issues, litigation may often be an emotionally charged, negative experience for the parties involved. As another option to litigation, collaborative law is an out of court process that is intended to produce an environment of consideration for others and communication that helps parties cooperate with each other and reach a settlement agreement.

The collaborative law model has been increasing in popularity since it was introduced in Minneapolis, Minnesota, in the early 1990s. It has been used in the United States, Canada, Australia, New Zealand, England, Ireland, Scotland, China, some African countries and other European countries. Attorneys in the US and around the world have been forming professional groups in support of the collaborative law method as its recognition and usage has grown. One of these groups is the International Academy of Collaborative Professionals (IACP). Goals of groups, such as the IACP, are to provide individuals information about what collaborative law is, if it may be a good choice for them and how to locate an attorney who is trained in collaborative law.

Attorneys that practice in this area are trained in the collaborative law method. There is currently no formal training program. However, in most states training includes workshops and instruction with other collaborative law professionals and involves skills similar to those of a trained mediator, such as interest-based negotiation. Due to the success and popularity of this method, some states have statutes regarding collaborative law and many other legislatures, including the federal government, are currently developing laws that will include collaborative law as a form of dispute resolution (ADR).

Collaborative law is intended to be conducted by a team of specialists. The team approach may help the parties reach an agreement by giving them guidance in specific areas. Specialists may focus on children’s issues, mental health or financial and do not have to be attorneys or part of the legal profession. Not all types of trained specialists have to be utilized in every collaborative law negotiation; however, a financial specialist is used by most parties. The purpose of specialists is to help the parties reach a settlement they can both agree to and assist with any difficulties the parties may have regarding parenting plans or visitation, valuation of property or other assets, budgeting, alimony, child support, communication skills or assistance with mental health issues such as depression or anxiety.

When parties agree to using collaborative law for their family law issues, they must agree to enter the negotiation process, fully participate in the negotiation and treat the other party with civility and respect. If the parties cannot agree to these terms, the collaborative model may not be the right choice for them and the process cannot continue. If the parties agree to the terms, each spouse will have their own attorney to represent his or her interests in the negotiations. The parties will have a series of meeting with each other, each party’s attorney and team specialists to each an agreement. If an agreement cannot be reached, the collaborative method is discontinued and the parties must engage new attorneys to enter the litigation process to resolve their dispute.

Can Same-Sex Couples Marry?

Historically, state laws would only recognize a marriage between a husband and wife of the opposite gender. Some state statutes focused on the issue of same-sex marriage and declared that such a union would not be valid. Other state laws did not refer to gender in statutes regarding marriage. However, the courts in many states have still read the law as not allowing marriage between individuals of the same gender. In recent years, this view has been changing. It is true that the majority of states still do not recognize same-sex marriage, but a minority of states do. Moreover, there are some states that do not have same-sex marriage, but have laws that protect same-sex unions; these include civil unions and domestic partnerships.

Presently, there are only two states that have statutes recognizing marriage between individuals of the same gender, California and Massachusetts. Most recently, California’s Supreme Court ruled that any statute that deprived persons of the right to marry (regardless of gender) was unconstitutional. Therefore, California’s marriage statute was changed to include same-sex couples. The law and courts in Massachusetts also recognizes marriage between individuals of the same gender. Other states, such as Connecticut, New Jersey, Vermont and Washington (to name a few) have statutes that recognize civil unions or domestic partnerships and the protections that each affords same-sex couples. However, these states do not specifically recognize same-sex marriage. There are additional states with same-sex marriage statues in the legislatures and it is probable that additional jurisdictions will extend the right to marry to couples of all genders in the future.

What are Civil Unions and Domestic Partnerships?

Although most states do not have statutes, giving same-sex couples the same rights regarding marriage as opposite-gender couples, a minority of states offer same-gender couples other protections that are similar to some of the benefits that opposite-gender couples enjoy. Of these protections are civil unions or domestic partnerships. The purpose of a civil union is to give same-sex couples the same rights and privileges as married couples. However, civil union states will still not recognize the union as a marriage. Some of the benefits of civil unions are inheritance/rights of survivorship, family leave, workers compensation, wrongful death claims, adoption and the right to make medical decisions. However, the rights and benefits associated with a civil union are not upheld in states that do not recognize such a union.

Similarly, domestic partnerships give same-sex couples some of the rights and benefits that married couples enjoy. However, where civil unions give most of the benefits of marriage, the benefits of domestic partnerships are fewer. The protections that are available for a domestic partnership differ from state to state, but often include survivorship rights and employment benefits. Some requirements for a domestic partnership are that the two persons are cohabitating, both eighteen or older (of the age of majority), not already married, in a civil union or a domestic partnership and (in some jurisdictions) have signed a Declaration of Domestic Partnership form. Like civil unions, domestic partnerships are not recognized by states that do not consider a civil union or domestic partnership valid. In those states, the rights and benefits associated with each type of union will not be extended to the couple.

What Rights do Children Have?

Children have most, but not all, of the same rights as adults. Rights that are often at issue are the rights of minors in delinquency proceedings, due process rights in schools and privacy rights. A minor child is more vulnerable than an adult, and it is important that children have rights to protect them. In order to have protections and safeguards, it is necessary to limit some rights that adults may have in the same or similar situations. Some rights that may be limited are privacy rights and the rights of a minor child in school. Children must also be protected in the court system, such as delinquency proceedings. It is often difficult or impossible for minors to advocate for their own rights in a legal context. For this reason, advocates may be appointed by the courts to ensure that children’s rights are protected and their best interests are being looked out for.

What are the Rights of Children in a Delinquency Proceeding?

In the past, children were not given many “adult” protections in the juvenile court. This has been changed in recent years, and now children have many of the same rights as adults in the adult criminal court system. In a juvenile court delinquency proceeding, minors will be afforded certain rights such as the right to notice of the charge against them, the right to confront any witnesses against them, the right not to incriminate themselves and the right to an attorney (like in criminal court, an attorney may be appointed by the court if the child cannot afford one).

What are Children’s Rights in School?

The rights of minors in school have long been a subject of debate for lawmakers. Children have due process rights under the Constitution; however, these due process rights are not as expansive as those afford adult defendants. Children also have the right to be safe while in school. At times, the right to be safe prevails over other rights such as those regarding search and seizure and suspension.

What Privacy Rights do Children Have?

Although children have privacy rights, they do not have the same rights to privacy has adults. Since children are under the care of adults, they must be safeguarded. Part of raising children and keeping them safe may take away some rights to privacy that adults have. Privacy issues often arise with medical issues. Some medical issues may include sharing a child’s medical information with his or her parents, informing parents of their underage child’s pregnancy or other health or reproductive issues. There may also be issues concerning a child’s right to medical care. For various reasons, often religious in nature, parents may deny their children access to medical care. In circumstances where a child’s life is in jeopardy, the government may intercede. Parents have a right to their religious beliefs and how to parent their children, but those rights are not superior to their children’s right to live and be saved by medical care (if possible).

What is Pet Custody?

The end of a relationship is a difficult time for most individuals. When going through a divorce or separating, a couple must not only deal with the emotional aspects, but the division of marital possessions. Marital possessions may include finances and property, but also include any family companion animals. Custody over the family pet has become an important issue for many divorcing couples in recent years. As lifestyles have been changing, animals have become significant family members. For some individuals, the loss of the family pet may be as emotionally traumatic as losing a human loved one. Since animals have become such a central focus of many families’, custody of such a family member is a main concern of many couples.

Legally, a companion animal is treated as property. The court must view pets as part of the marital property; therefore, the options available to the court are limited. Even though the family dog may be like a child to the couple, the court cannot reflect this feeling when dividing the couple’s property. There is no legal authority to determine custody of a pet with a best interest’s standard, as a judge would when determining custody of a human child. Therefore, the options may be to give one individual custody of the pet, determine the worth of the animal and give one party the pet’s monetary value or sell the family pet and divide the proceeds between each party. There is no option of joint custody or visitation over property. If a couple would like to have dual ownership, or visitation, of their family pet, they must create an arrangement between themselves. The court will not have legal authority to enforce such an agreement. If the couple comes to an understanding regarding visitation or joint pet custody, the court will also not be able to include their agreement in the marital dissolution or the property settlement agreement; nor will the court have the power to enforce the couples’ pet custody arrangement if either party does not abide by the terms.

Naturally, the current legal options are not acceptable to most loving pet owners. In response to the emotional aspect of determining pet custody, some courts have been using an alternative viewpoint. Although there are no specific laws concerning pet custody, there are anti cruelty laws that apply to companion animals. Some courts have used these laws as authority to consider the animal’s best interests when deciding who should get custody of the family pet. Few courts have used this standard; however, it may be more of a growing trend in the future. As pets have more of an elevated status in the family unit, people may demand that their animals be treated as more than property in the eyes of the law. A pet is more important to most people then who get’s the wedding china or the lawn mower. The value of an animal is also more difficult to determine. The market price of the family pet may not take into consideration the emotional worth the pet brings to its owners. Thus, the value of a pet as property may not be truly accurate for the pet owners.

Who Gets Custody of Embryos?

The recent innovations in reproductive technology have helped many couples and individuals achieve pregnancies that may have been impossible just a few years ago. As with many innovations, however, rapid scientific advances have brought with them new ethical and legal dilemmas. Twenty years ago, judges and attorneys who were accustomed to dealing with the often challenging issues of child custody may not have guessed that they would soon be faced with potentially even tougher issues involving custody of frozen embryos.

Take the case of a Tacoma, Washington couple who had two embryos formed with donor eggs and the husband’s sperm “left over” after a successful birth using a surrogate. The couple had the eggs frozen with the intention that they, too, would someday be implanted in the uterus of a surrogate mother. The couple later divorced, and the judge awarded custody of the frozen embryos to the husband. The husband wanted to place any children born from the embryos for adoption in a two-parent family outside the state of Washington. The wife appealed from the court’s ruling, arguing that she wanted to raise any potential children. The egg donor also wanted a say, and sided with the wife.

A Michigan couple faced a similar dilemma. The divorced couple fought over five frozen embryos for years. The former wife wanted to have more children, using the embryos, but the former husband objected and the case went to court. The judge ruled in favor of the husband, stating that the husband had a right to choose not to have more children. In that case, too, the wife appealed.

An Illinois court struggled with a similar problem in another case involving frozen embryos, ordering in late 1999 that they remain frozen until the court could sort out the weighty constitutional questions involved. In that Cook County case, the husband and wife were in the midst of divorce when the husband asked the court to order the wife not to attempt to become pregnant through implanting the embryos they had frozen earlier in their marriage. The court issued the requested order, ruling that custody of the embryos would be decided as a part of the divorce trial.

These cases demonstrate that thorny legal issues may arise when assisted reproductive technology is implemented, further complicating an already stressful situation like divorce. Couples considering assisted reproductive technology are generally only thinking of the potential positive outcomes and fulfilling their dreams of starting a family. Such couples would be well advised, however, to discuss the legal implications of their decisions with their attorneys before the fact, so that if for some reason the marriage does not last,, they will have prepared themselves as well as possible to deal with the legal and ethical challenges presented by their situation. The law does not answer the question of who should have custody over embryos. If the couple has an agreement that settles this question, the court will generally uphold it. However, absent an agreement, courts treatment of embryo custody differs based on the jurisdiction and the situation involved. Due to the uncertainty, it is important to consult with your attorney when choosing to pursue conceiving a child through reproductive scientific advancements.

What is the difference between an agency adoption and an independent adoption?

In an agency adoption, the prospective adoptive parents contact an adoption agency to start the process, and the agency acts as an intermediary between the adoptive parents and the birth parents, matching them up and guiding them through all of the necessary hurdles to finalization. In an independent adoption, the birth parents and adoptive parents locate each other and work together independently to accomplish the adoption without the benefit of agency involvement, although typically a lawyer is hired to make sure that all legal requirements are met.

Each type of adoption process has advantages and disadvantages. Using an agency can be beneficial because agencies are familiar with adoption requirements, which can be overwhelming to prospective parents and birth parents alike. Agencies can also provide counseling and other support services to the birth and adoptive families, both before and after the adoption. However, some agencies have selection criteria that may screen out certain prospective parents, and waiting times can be very long.

Independent adoptions may allow prospective adoptive and birth parents more control over the adoption process. All parties may have a greater opportunity to get to know each other. Adoptive parents may be able to circumvent an agency’s selection criteria and shorten the waiting time by going the independent route. On the other hand, birth parents may not receive counseling in an independent adoption, which could lead to greater uncertainty and even the possibility of a change of heart. Additionally, independent adoptions are not legal in all states, so it is essential to check applicable state laws before choosing this option.

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