Uh oh, my spouse is already married! Do I still have property rights in a divorce?

​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.

Tags: Property Division, High Net Worth Divorce, Divorce