Wednesday, December 4, 2013

Legal Protection of Marriage Relationship Not Readily Available for Some Couples! (Part I of II)

Persons who are married have certain legal rights and protections that they don't even think about.
However, there are other couples who have long-term, committed relationships who have things a bit more difficult.

Persons who are involved in a marriage relationship without a ceremonial marriage

In Texas, common law marriage is recognized. There are many couples who consider themselves married, but who have not gone through the traditional "legal" ceremonial marriage.  Any of the following situations could apply; 

  1. The couple has filed a formal and legally binding declaration of marriage at a county clerk's office; 
  2. The couple has signed a document between themselves that states that they intend to be legally married, but the document is not written formally, or is not filed with a governmental authority;
  3. The couple decided verbally to be "married", committed to each other privately, or had a "ceremony" without a marriage license;
  4. The couple just gradually "fell into" the marriage relationship, by living together long term and gradually beginning to refer to each other as "husband", "wife" or "spouse", without really making a specific decision at a certain time. 
  5. The couple had a religious ceremony that was not sanctioned by the state, especially one that was in another state or country.
In Texas, the couple in #1, above does have the legal protection of marriage. The other couples may as well, but they may be called upon to "prove" it in certain situations.  The situation in #4, above, is the most difficult one, especially if one of the partners decides that s/he no longer wants to be in the relationship and there is a potential property dispute. 

Here are the most common situations in which questions may occur:
  1. The couple is purchasing property together, or co-owns property or accounts;
  2. The couple is separating and realized that they don't know whether or not they need to file for a divorce or just split;
  3. One person is ill and unable to speak for him/herself and the "spouse" of the healthy partner is uncertain;
  4. One person dies and the surviving partner is not sure of his/her legal status as a surviving spouse (especially if challenged by other family members).
  5. Anytime children are involved.  There are a variety of situations in which having children may cause the question to arise of whether or not the couple is "married", such as paternity issues, seeking state aid or financial aid and so on. In addition, a couple that is splitting up and needs to have court orders for the children will need to decide whether a divorce case or a "suit affecting parent-child relationship" is the appropriate case to file in court. 
  6. One of the partners goes out and legally marries someone else without legally "dissolving" the previous relationship.
These situations can produce some of the most legally challenging issues. Plenty of law school examination questions have been written about situations just like these.   

It is important for each person in a relationship to know and understand his or her legal status and where he or she stands in relation to property ownership and other rights.   No one should devote years to a relationship, help accumulate property, and worry about being left penniless if their partner dies, nor should partners have to worry about proving their legal relationship to each other during a catastrophic illness.

An attorney can help in the following ways:

  1. Help a partner understand his/her legal standing and whether they would be considered legally married;
  2. Help the partner(s) form a contract for the purchase and ownership of property when necessary;
  3. Help the partner(s) with an agreement detailing the sharing or splitting of their assets and debts while they are together;
  4. Help the partner(s) understand their legal rights and property ownership if they are about to split up;
  5. Draft powers of attorney and health care powers of attorney to clarify their rights to others;
  6. Draft wills and trusts to provide for each other in the event of death;
  7. Help the partner(s) understand the various laws and procedures relating to paternity, custody and visitation.
A short legal consultation can help clarify any questions and assure that the parties are protected.

Kalish Law Office: Family law, Wills, and Contracts.  
The Woodlands Texas. Since 1984

1 comment:

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