In Texas, there is a presumption that all property accumulated during a marriage is community property. However, there are some assets the law classifies as separate property:
Separate Property
Property owned before you are married is your separate property. For example, if you owned your house before you were married, and you and your spouse lived together during the marriage in this house, the house is typically considered your separate property.
Another form of separate property is an inheritance you received before or during your marriage. Therefore, if you inherited a valuable piece of jewelry, a home, or a substantial amount of money, these possessions are separate property. Other assets that are separate property include gifts you received before or during your marriage, and certain parts of personal injury settlements.
Bear in mind that the person who owns the separate property must prove the property is separate by direct "tracing" using documents like statements, checks, deeds, or other legal instruments.
Community Property
It is important to note that income such as interest, earnings, or dividends made from separate property is community property. Additionally, retirement funds accumulated after marriage, and all earnings made during the marriage is community property.
(c) 2009 Rachell Miller, JD
Friday, February 27, 2009
COMMON LAW MARRIAGE IN TEXAS
Though many other states do not recognize common law or informal marriage, the state of Texas does. Contrary to popular belief, there is no requirement to be a couple a certain number of years for common law marriage. In Texas, to satisfy requirements for a common law marriage between a man and a woman, a couple must only do three things:
1. Agree to be married.
2. Represent to others you are married.
3. Live together in Texas as husband and wife.
As an attorney, I DO NOT recommend common law marriage. Why? Because if you choose to go separate ways, you must first prove that you were actually married before being entitled to a divorce or other marital rights. Under the Texas Family Code, you only have up to two years after splitting to file an action to prove that your marriage existed. If you do not file this action in time, it is presumed that you were never married. This may cause you to forfeit legal rights such as marital property rights.
If a couple chooses to proceed with common law marriage, I strongly suggest filing a Declaration and Registration of Informal Marriage first. You can get this form from the County Clerk. By completing this form, your marriage is recognized as legal from the start without having to prove it existed.
Otherwise, to prove that you were common law married, you must present evidence to the court that you held yourselves out to the world as husband and wife. This may include testimony from you or others that your partner introduced you in social situations as his wife, or that you introduced him as your husband. To prove the marriage, you can also ask the court to consider joint charge accounts, joint property, and documents such as leases signed as husband and wife, tax returns filed jointly as a married couple, and insurance policies listing one person as the other person's spouse.
Once an informal marriage is proved by: 1) signing a Declaration and Registration of Informal Marriage or 2) by court ruling, the informal marriage has the same validity as a ceremonial marriage. Like couples in a ceremonial marriage, an informal marriage can only be dissolved by death, divorce, or annulment.
My legal advice is to pay the nominal fee for a marriage license and avoid the hassle of having to prove common law marriage altogether.
© 2009 Rachell Miller, JD
1. Agree to be married.
2. Represent to others you are married.
3. Live together in Texas as husband and wife.
As an attorney, I DO NOT recommend common law marriage. Why? Because if you choose to go separate ways, you must first prove that you were actually married before being entitled to a divorce or other marital rights. Under the Texas Family Code, you only have up to two years after splitting to file an action to prove that your marriage existed. If you do not file this action in time, it is presumed that you were never married. This may cause you to forfeit legal rights such as marital property rights.
If a couple chooses to proceed with common law marriage, I strongly suggest filing a Declaration and Registration of Informal Marriage first. You can get this form from the County Clerk. By completing this form, your marriage is recognized as legal from the start without having to prove it existed.
Otherwise, to prove that you were common law married, you must present evidence to the court that you held yourselves out to the world as husband and wife. This may include testimony from you or others that your partner introduced you in social situations as his wife, or that you introduced him as your husband. To prove the marriage, you can also ask the court to consider joint charge accounts, joint property, and documents such as leases signed as husband and wife, tax returns filed jointly as a married couple, and insurance policies listing one person as the other person's spouse.
Once an informal marriage is proved by: 1) signing a Declaration and Registration of Informal Marriage or 2) by court ruling, the informal marriage has the same validity as a ceremonial marriage. Like couples in a ceremonial marriage, an informal marriage can only be dissolved by death, divorce, or annulment.
My legal advice is to pay the nominal fee for a marriage license and avoid the hassle of having to prove common law marriage altogether.
© 2009 Rachell Miller, JD
WHAT ARE GROUNDS FOR DIVORCE IN TEXAS?
Let me first say that a decision to divorce is a serious one, and should be weighed very carefully. Especially, in cases that do not involve adultery or domestic violence, our office strongly urges marital counseling and relational education before beginning divorce proceedings. Divorce presents many challenges for a family’s emotional, relational, and financial future.
Once you have decided to end your marriage, the State of Texas allows you to divorce on both No-Fault and Fault based grounds.
No-Fault Grounds
1. Insupportability- the marriage has become insupportable because of discord or conflict of personalities and there is no expectation of reconciliation. (Most cases are filed on this basis).
2. Living apart for at least 3 years- spouses have lived apart without cohabitation for at least three years.
3. Confinement in a Mental Hospital for at least 3 years: the other spouse has been confined in a state mental hospital or private mental hospital for at least three years; and it appears that the hospitalized spouse's mental disorder is so severe that complete recovery unlikely.
Fault Grounds
1. Adultery- spouse has committed adultery.
2. Cruelty- the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable.
3. Conviction of a Felony- the other spouse has been convicted of a felony and has been imprisoned for at least one year, and has not been pardoned. You cannot divorce on this ground if you testified against your spouse and the spouse was convicted.
4. Abandonment of Petitioner for 1 year- spouse left with the intention of abandonment and remained away for at least one year.
Though insupportability is the most commonly used basis for divorce, some choose to pursue Fault-based grounds in order to be awarded a disproportionately higher division of community property.
(c) 2009 Rachell Miller, JD
Once you have decided to end your marriage, the State of Texas allows you to divorce on both No-Fault and Fault based grounds.
No-Fault Grounds
1. Insupportability- the marriage has become insupportable because of discord or conflict of personalities and there is no expectation of reconciliation. (Most cases are filed on this basis).
2. Living apart for at least 3 years- spouses have lived apart without cohabitation for at least three years.
3. Confinement in a Mental Hospital for at least 3 years: the other spouse has been confined in a state mental hospital or private mental hospital for at least three years; and it appears that the hospitalized spouse's mental disorder is so severe that complete recovery unlikely.
Fault Grounds
1. Adultery- spouse has committed adultery.
2. Cruelty- the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable.
3. Conviction of a Felony- the other spouse has been convicted of a felony and has been imprisoned for at least one year, and has not been pardoned. You cannot divorce on this ground if you testified against your spouse and the spouse was convicted.
4. Abandonment of Petitioner for 1 year- spouse left with the intention of abandonment and remained away for at least one year.
Though insupportability is the most commonly used basis for divorce, some choose to pursue Fault-based grounds in order to be awarded a disproportionately higher division of community property.
(c) 2009 Rachell Miller, JD
HOW LONG DOES A DIVORCE TAKE
The answer to this question is--- it depends.
By Texas law, the soonest a divorce can be granted is 60 days after filing the divorce petition. However, contention between the spouses, delay in serving the other party with divorce papers, and complex issues in your case can significantly prolong the process.
The longer the divorce process takes, the more expensive the divorce becomes. Your case becomes more costly because you must pay for an attorney for a longer period of time, you may have to take off work to attend more court proceedings, and you may be subject to additional trial-related fees depending on the issues in your case.
To decrease the time and expense associated with a divorce, spouses should amicably work out as many issues (i.e., custody, property, debts, taxes) between themselves as possible. If you don’t work issues out between yourselves, you will pay hefty fees to lawyers to do it for you.
When spouses resolve issues between themselves, you only pay a lawyer for an uncontested or agreed divorce. Uncontested divorces are the most likely to be over soon after the 60-day waiting period.
(c) 2009 Rachell Miller, JD
By Texas law, the soonest a divorce can be granted is 60 days after filing the divorce petition. However, contention between the spouses, delay in serving the other party with divorce papers, and complex issues in your case can significantly prolong the process.
The longer the divorce process takes, the more expensive the divorce becomes. Your case becomes more costly because you must pay for an attorney for a longer period of time, you may have to take off work to attend more court proceedings, and you may be subject to additional trial-related fees depending on the issues in your case.
To decrease the time and expense associated with a divorce, spouses should amicably work out as many issues (i.e., custody, property, debts, taxes) between themselves as possible. If you don’t work issues out between yourselves, you will pay hefty fees to lawyers to do it for you.
When spouses resolve issues between themselves, you only pay a lawyer for an uncontested or agreed divorce. Uncontested divorces are the most likely to be over soon after the 60-day waiting period.
(c) 2009 Rachell Miller, JD
CAN I GET AN ANNULMENT?
Most cases will not qualify for an annulment. However, Texas law allows an annulment under the following circumstances:
1. Under Age Marriage- Parents can annul the marriage of their children under the age of 18 who married without their permission.
2. Marriage Under the Influence of Drugs or Alcohol- At the time you married, you were drunk or on drugs, and you have not voluntarily lived with the other party since the effects of the alcohol or drugs wore off.
3. Impotency- either spouse was permanently impotent at the time of the marriage and you did not know about the impotency. You have not voluntarily lived with your spouse since learning of the impotency.
4. Married Under Fraud, Duress or Force- your spouse used fraud, duress, or force to induce you to enter into the marriage. You have not voluntarily lived with your spouse since learning of the fraud or since being released from the duress or force.
5. Mental Incapacity- at the time of the marriage, you did not have the mental capacity to consent to marriage or to understand the nature of the marriage ceremony because of a mental disease or defect. Since the marriage ceremony, you have not voluntarily lived with your spouse when you did have the mental capacity to recognize the nature of the marriage relationship.
6. Concealed Divorce- your spouse was divorced from another person within 30 days before marrying you and you did not know about the divorce. Since discovering the hidden divorce, you have not lived with your spouse. You must bring this suit within 1 year after the marriage.
7. Married Less than 72 Hours after Getting Marriage License- after getting your marriage license, you did not wait 3 days before getting married. You must bring this suit within 30 days after the marriage.
1. Under Age Marriage- Parents can annul the marriage of their children under the age of 18 who married without their permission.
2. Marriage Under the Influence of Drugs or Alcohol- At the time you married, you were drunk or on drugs, and you have not voluntarily lived with the other party since the effects of the alcohol or drugs wore off.
3. Impotency- either spouse was permanently impotent at the time of the marriage and you did not know about the impotency. You have not voluntarily lived with your spouse since learning of the impotency.
4. Married Under Fraud, Duress or Force- your spouse used fraud, duress, or force to induce you to enter into the marriage. You have not voluntarily lived with your spouse since learning of the fraud or since being released from the duress or force.
5. Mental Incapacity- at the time of the marriage, you did not have the mental capacity to consent to marriage or to understand the nature of the marriage ceremony because of a mental disease or defect. Since the marriage ceremony, you have not voluntarily lived with your spouse when you did have the mental capacity to recognize the nature of the marriage relationship.
6. Concealed Divorce- your spouse was divorced from another person within 30 days before marrying you and you did not know about the divorce. Since discovering the hidden divorce, you have not lived with your spouse. You must bring this suit within 1 year after the marriage.
7. Married Less than 72 Hours after Getting Marriage License- after getting your marriage license, you did not wait 3 days before getting married. You must bring this suit within 30 days after the marriage.
CHILD SUPPORT FOR DISABLED CHILDREN
Disabled children are entitled to child support just as non-disabled children are. However, the unique needs of disabled children often require additional child support past the age of 18 and throughout the child’s adulthood. Disabled children over the age of 18 are referred to as an “Adult Child”.
Disabled adult children require substantial care and personal supervision because of their mental or physical disabilities. The nature of some disabilities renders adult children incapable of independence and self-support. A parent or a person with guardianship of the adult child is designated to receive child support on the child’s behalf. Child support for a disabled adult child may continue indefinitely.
In calculating child support for a disabled adult child, the court considers the following factors:
1. The existing and future needs of the adult child related to his/her care and supervision.
2. Whether the parent pays for or provides care and supervision of the adult child.
3. The financial resources available to both parents for the support, care, and supervision of the adult child.
4. Other financial resources and programs available for support, care, and supervision of adult child.
A law suit for the support of a disabled adult child can be filed only by a parent, a court-ordered guardian of the child, or the child himself (only if he does not have a mental disability and the court finds he can manage his own finances). A suit for support can be filed no matter how old the adult child is.
© 2009 Rachell Miller, JD
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