About Me

Name: Hal Davis

Location: Plano, Texas, United States

View my complete profile

Last month I was asked to speak to the counseling class at Dallas Theological Seminary. Here's one of the questions they submitted in writing:

What constitutes a common law marriage in Texas? Time together? mailing address? Are they any harder/easier to dissolve in a divorce?

See Sec. 2.401 of the Texas Family Code, referring to "informal marriage". It requires an "intent" to be married (such as a marriage ceremony where it turned out the judge or preacher really wasn't a judge or preacher), "representation" to others that you are married (meet my wife), and "cohabitation" with no specific duration required. I guess it could be as simple as the bartender pronouncing you man and wife, then at the hotel you register as Mr. and Mrs.

First, this doesn't come up very often. Usually if a couple shacks up then moves on, they don't bother trying to establish a marriage. Even if there are kids, it's easiest and cleanest to deal with this as a paternity suit instead of proving a marriage and then doing a divorce. But there are two contexts in which it does come up.

In a wrongful death suit, the widow/widower claims a marriage existed so as to claim money the "spouse" would have earned as community property. That is, in a couple who were not formally married, the husband is killed on the job, such as on an offshore drilling rig, and the "wife" needs to prove that they were married (informally) so that she can get wrongful death benefits from the insurance company. These are generally much easier to prove, partly because the main person who could disprove the marriage is dead, and partly because it can be really messy trying to claim in a jury trial that the insurance company shouldn't have to pay up because the widow/widower wasn't sufficiently married to the deceased.

In another context, sometimes one party to an "informal" marriage wants to prove the marriage exists in order to get divorced to get a share of community property (if the parties weren't married, then there is no community property). Classic example: man and woman shack up, and wife buys a winning lottery ticket. Is the jackpot community property? In these cases, the courts have adopted a fairly strict requirement of "attempted marriage" out of policy concerns. In order to obtain the benefits of marriage, one must really be married, or have reasonably thought that they were married, instead of simply finding it convenient to now state that they were married. So, for wife to get a share of husband's lottery ticket, she'll be arguing that they really attempted to get married, and husband will be arguing that if they had meant to be married, they would have followed through and done it legally.

I was recently invited to speak to the counseling class at Dallas Theological Seminary, and here's another of the questions they submitted in advance:

What are the most common building blocks of a "covenant marriage" in the states that have them? How popular are they? If some couple wanted to construct such a marriage contract here, how would they piece one together? Again, pros/cons?

Again, I'm a low-level practitioner, not a high-level theorist, so I haven't studied what other states are doing. I have no idea how popular they are. I'm vaguely and mildly opposed to covenant marriage, as it tries to impart to temporal government enforcement of a spiritual agreement. State legislatures generally don't do a good job of enforcing spiritual and personal covenants. Can you imagine going to court and having a jury trial over the issue of whether you were "cherished" or "honored"?

There's a lot more to contract law than simply saying what happens when it's over, and specifying damages. It also provides for damages before it's over, such as specific performance (you have to deliver the bowling balls I ordered, even if it means that you get them from somewhere else). But we don't enforce anything else from a covenant marriage, such as what happens if husband spends too much time at work, or if wife is no longer interested in sex.

Having said that, I believe that covenant marriages will produce a lot more money for divorce lawyers by prolonging and complicating the divorce process. Unfortunately, it will also be at the expense of those who need to break away from a loser/addict/quitter and start over.

I don't know how one would piece together an enforceable contract that would simply make divorce more time-consuming, complicated, and expensive. But you could probably insert some sort of economic penalty clause (e.g., we agree that either party files for divorce, they only get 35% of the community property estate, unless they can show addiction, adultery, compulsive dissipation of assets, physical abuse ...)

Labels: contract marriage, covenant divorce, covenant marriage, divorce contract

Last week I spoke to the counseling class at Dallas Theological Seminary, and here's another of their questions:

2. Your opinions on prenuptial agreements? Pros/Cons?

The biggest single "pro", as I see it, is that you can greatly simplify the basic law on separate property. The law is that income (rent, dividends, interest, but not appreciation) on separate property is community property. You can agree in a pre or post nup that income on separate property is separate property, making it a lot easier to keep separate property from becoming tainted by community property claims.

Another pro is to be able to provide that contributions to your retirement account are also separate property, making things even simpler in a divorce, provided that both parties come in with roughly equal earning capability.

A general pro of prenups is to protect an earning spouse from a deadbeat spouse, such as by limiting access to alimony. I see a lot of husbands making good money, where wives feel it their right to not contribute to the economic union, due to lack of initiative (not due to disability or to a joint decision that it's necessary to stay home with the kids).

One con is that the economically weaker partner can be weaker in the marriage, making it less of a union and more of an employment contract. Especially if the stronger partner has a business which can be classified as separate property, and can thus control how much of his "reward" for ownership and labor can be distributed as community property income and how much is reinvested in his separate property.

A bigger con is that one can provide for NO community property. So there's nothing that's "ours", in many ways subverting the goal of a marital union.

Labels: community property, marital property agreement, postnuptial agreement, prenuptial agreement, separate property

Recently I was the guest lecturer for the counseling class at Dallas Theological Seminary. Here's one of the questions they asked, along with my answer.

We are aware that there is no such thing as a "legal separation" in Texas. But for states where it does exist, what are its advantages? Are there piecemeal ways to arrange an effective "legal separation" in Texas?

Premise: If it takes longer to get divorced, a significant number will reconcile instead. I Don't know the statistics on this.

Premise: If it has to take a while to get divorced, you also need to put in some protections for the community property estate, access to children, and various temporary measures in a divorce.

I'm not a high-level theorist, just a low-level Texas practitioner.

I'm not a fan of legal separation, as I believe it unduly complicates the divorce process. But, I believe that there are good attorney's fees to be earned in managing the process.

Having said that, let's address what you can do in temporary orders that you can't do with other stuff.

Most issues dealing with children (possession, parental rights, support) cannot really be addressed without filing for divorce and having temporary orders issued.

Most issues dealing with ownership and management of separate property and community property can be dealt with in a "post nup"

Spousal support is not workable outside of a divorce.

Move-out, stay-out, and stay-away stuff can't really be addressed outside of a divorce, except as ancillary to criminal proceedings (assault, stalking stuff)

Labels: legal separation, seminary