During a divorce one of the most important issues to be decided is how to divide the community estate, or more precisely defined as, the property acquired during the marriage that is not separate property.  (Complex issues can sometimes arise when deciding if something is community or separate property and you should enlist the help of a qualified Houston divorce attorney if you are facing this task).  The question of how to characterize property as community or separate can be difficult when the parties are clearly married but can be even more dicey if the marriage is void under Texas law.  Sometimes certain marriages are void and for that reason no property is "acquired during the marriage" because there was no marriage.  Where does that leave an innocent spouse upon divorce in such a circumstance?  Read on for some insight.

What marriages are considered void under Texas law?
Because of the public policy favoring the preservation of the sanctity of marriage the state of Texas has the power to regulate who can and cannot marry.  If two people who are forbidden by law from marrying and they attempt to enter into either a ceremonial marriage or an informal marriage "common law marriage" then the laws of Texas consider such a marriage as void.  Examples of certain people who cannot marry are people who are already married, certain relatives, and people who have been divorced in the last 30 days with the exception of divorcing spouses divorced within the last 30 days but who desire to marry each other again.   

The Texas legislature has recognized the problem mentioned above and has attempted to protect the rights of an innocent spouse to a void marriage using what is known as the putative marriage.  A "putative" marriage is one that is entered into in good faith by one of the parties but for some legal reason the marriage is void.  The most common situation is where a person enters into a marriage with another who is already married but fails to disclose this fact to the first person.  The good news is that the putative spouse has the same rights as a lawful spouse would have had during the putative relationship.  There are some requirements to be met though.

What are the requirements to have a putative marriage?
To prove a putative marriage a party must show that they have entered into the marriage in good faith and without knowledge of the legal impediment to the marriage.   Good faith means that an actual belief that the two people can be married lawfully and that the marriage was valid.  If a potential putative spouse is not aware that there was some sort of legal impediment to the marriage then it is presumed that they entered into it in good faith.  However, if the party becomes aware of the impediment the question of good faith becomes more complicated because you will have to prove certain actions or lack of action was reasonable on your part in investigating the possible legal impediment.   If you need help deciphering if you entered into a potential putative marriage in good faith then you should contact a qualified divorce attorney to help you with that answer.  The requirements of establishing the existence of a putative marriage is very important in securing your rights from the other party to a void marriage.

How long can a putative marriage last and is there any way to make the void marriage valid?
A putative marriage lasts as long as the impediment to the marriage exists and that one of the parties is unaware of that impediment.  If the impediment is removed then the putative marriage becomes valid and a divorce case in this instance would proceed as though the marriage was valid from the beginning.  If a party to a putative marriage discovers the impediment then they are no longer acting in good faith and the relationship is governed by the rules covering what is known as a meretricious relationship.  If you find yourself in this position then contact a qualified Houston family and divorce lawyer.  

What rights do I have if I am the innocent spouse in a putative marriage?
A party to a putative marriage who is the innocent spouse, unaware of the impediment, can obtain a division of property as if the innocent spouse was a party to a valid marriage.  That is an innocent spouse is entitled to a just and right division of the property acquired during the length of the putative marriage.  Further, a spouse has a right to seek support while a case for divorce proceeds and has a right to seek spousal maintenance.

These are all issues that can become very complicated very quickly and if you are contemplating divorce and think your situation resembles some of the things talked about here then you should definitely seek help from a qualified attorney who is familiar with the rules that govern these types of situations.  I always advise people don't go at it alone.

Many people are familiar with the term "common law marriage", in Texas this idea is called an informal marriage.  Texas recognizes the informal marriage to the same degree as a formal one.  So if you are a part of an informal marriage then you cannot dissolve it merely by pretending it never happened.  To dissolve an informal marriage you either need to get a divorce, annulment, or one of the parties must have died.  To actually dissolve an informal marriage it is wise to seek the counsel of a Houston divorce lawyer.  

You may think that you have are a party to an informal marriage but the question as to whether or not you are depends on your specific circumstances and whether or not you meet all of the requirements set out in the Texas Family Code regarding informal marriages.  

What Does it Take to be Informally Married in Texas?
Marriage in Texas happens in two ways, formally and informally.  A formal marriage requires a marriage license obtained by the future spouses and a wait of 72 hours followed by a ceremony completed by someone who is permitted by law to perform a marriage ceremony, (a religious leader or a judge for example).  An informal marriage comes into being when two people who are over 18 years of age agree to be married, live together in Texas as a married couple, and represent to others that they are married.  If you ever need to prove an informal marriage, then those are the items that will certainly need to be addressed.  An example of one thing that can help prove that you hold yourself out as spouses is filing taxes together as a married couple and introducing each other to others as husband and wife.

If I am in this Situation is There a way for Me to Prove My Informal Marriage Before Divorce?
There is a way to help prove that you and your spouse intended to be married.  Texas has something called a Declaration of Informal Marriage.  You can get one of these forms from your county clerk's office and file a completed form with the clerk.  The form is very powerful and is similar in effectiveness as a marriage license.  It isn't a foolproof way to prove an informal marriage but it certainly makes it much more difficult for someone trying to disprove the existence of a marriage.  If you are a party to an informal marriage and you choose not to file a Declaration of Informal Marriage then to obtain a divorce you must be ready to prove that you meet all of the statutorily required elements of an informal marriage.  

Should I get a Divorce if I am a Party to an Informal Marriage?
Although there is an expense involved in hiring a divorce lawyer to obtain a divorce, and you may think that because there are no records of the marriage that one is not needed, there are several good reasons to get a divorce rather than just going your separate ways.  Firstly, Texas is a community property state which means that everything that was acquired during marriage is divisible between the spouses upon divorce.  So if you and your spouse have acquired a great deal of property during the time you were together then you will be entitled to a portion of certain things even if they are not in your name.  For example, if your spouse has a retirement account that he or she built up during marriage then you would be entitled to a share of it.  You wouldn't get any of it if you just went your separate ways.  This idea also is indicative of why one party may want to dispute the existence of an informal marriage.  

A person may want to obtain a divorce to divide up the marital property now before it becomes much greater.  For example if you anticipate making much more money in the future.  If you did not get a divorce and chose to go your separate ways then you stand a chance of your partner returning much later and suing you for a divorce and potentially being entitled to community property that was acquired during separation.  (Yes that is right, even if you are separated community property can still be acquired).

What are the Best Ways to Defend Against a Claim of Informal Marriage?
If you stopped living with the other party two or more years before the filing of the claim of informal marriage then the party who is trying to validate the marriage must overcome the presumption that no marriage existed.  Another way would be if either of the parties lacked the capacity to enter into a marriage, what constitutes capacity to marry is defined by statute.  Additionally if a party was already married before entering into the agreement to be married to you then the marriage to you would be considered void. 

Informal marriage and divorce in general is a complicate process with many statutorily defined rules that will need to be addressed.  If you are contemplating divorce then it would be wise for you to consult with an experienced Houston divorce attorney to help you navigate your way through all the pitfalls that could potentially develop if you decide to go at it alone.