Texas divorce lawyers and putative marriages---I thought you told me you were divorced!!

In the state of Texas, the issue of a putative marriage sometimes comes up in divorce situations.  Simply put, a Texas putative marriage exists when a person fails to get divorced before marrying someone else.  Technically, it is also called bigamy, but from the perspective of the "innocent spouse" (the one who had no knowledge of the prior marriage), it is referred to by Texas attorneys and the Texas Family Code as a putative marriage.  Every Texas divorce lawyer has at some time or another dealt with the issue of such a marriage.  Typically, a prospective new client will call and ask about the following situation:

----After years of marriage, one spouse suddenly lays the bombshell on the other spouse that he/she is still married to someone else.  It can happen a variety of ways--perhaps he/she thought he/she was divorced, but in fact the previous spouse never filed, or any number of other ways, but the issue is still the same:  what are the rights of the new (putative) spouse.  In many cases, the parties have been "married" for a number of years, had children together, and have accumulated what would in normal circumstances be a great deal of community property, including retirement benefits.   

The questions usually boil down to the following issues:

(1)  Is my marriage a valid marriage?  If not, how do we make it valid?

(2)  What if I don't want to stay married to the jerk?

(3)  What are my rights to property that was accumulated during our "marriage?"

(4)  What about our children?

(5)  Is either of us guilty of the crime of bigamy?

Answering these questions is beyond the scope of this article. However, the Texas Family Code addresses the subject, and generally allows the Courts to find that a putative marriage exits when one party enters into the marriage in good faith, but there is an "existing impediment" to the marriage on the part of the other spouse.  This means that the "innocent" spouse--the one who had no reason to know that the other spouse was still married, can be awarded property that was accumulated after the 2nd marriage.  The problem, obviously, is that the original spouse has property rights too.  It is up to the Court to decide how this property will be divided.  These issues have been decided in a number of ways--not all of them fair, and not all of them logical.  The lesson to be learned is this:  If you find out that your husband or wife is still married to someone else, get immediate legal advice fast!

San Antonio divorce and family-law attorney J. Michael Clay focuses exclusively on family-law issues such as divorce, child support, child custody, child-support modification, child-custody modification, child-support enforcement, child-custody enforcement, spousal maintenance (including enforcement and modification), wage withholding, adoption and termination issues.  J. Michael Clay is licensed to practice all types of law in the state of Texas, including federal district courts in the Western District of Texas, San Antonio Division.  He is not certified by the State Board of Legal Specialization to practice in any particulararea.

The material in this article is not intended as legal advice, and should not be construed as such.  The intention of the article and others like it in this blog is to discuss common legal issues in Texas family law cases and how Texas law applies to them.  Any statements regarding the state of the law and how it applies to particular situations is simply the opinion of the author, and should never be relied upon in place of the advice of a retained attorney.

Comments

[Common Law Divorce]

I have been taking care of my sixteen year old daugther father for over 20 years. We have lived in the same household as husband and wife. He was recently diagnosed with cancer, I took FMLA from my job to transport him to the doctor for his chemo, cooked and care for him while he was going through his treatments. He recently got a large settlement and advised me and my daugther that he will no longer help us, and then advised us that he is about to get married. When I asked what had he done to secure our daugther future he stated that was on me to. He has been paying child support since 1993 without any modification.

My question is can I file for a divorce from him and secure benefits for me and my daughter after twenty long years of abuse?