Houston Divorce Lawyer & Attorney : Cavers Law Firm : Texas Family Mediation & Adoption Lawyer

It is a common misconception that either party can simply tear up, shred, or otherwise destroy a premarital agreement to nullify it. To properly revoke the premarital agreement, both parties must execute a written agreement (using the same formalities as in executing the pre-marital agreement) to property revoke. 

It does not matter if one or both of the parties is certain to have destroyed all the copies.  Usually the attorneys for the husband and wife retain an executed copy. If the revocation of the premarital agreement is not handled properly, either party may seek to enforce pre-marital agreement.

Before attempting to revoke or amend a pre-marital agreement, it is best to seek assistance of a licensed attorney familiar with such agreements.

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Texas voters overwhelmingly approved a constitutional amendment prohibiting marriage between individuals of the same sex, and about 43 other states also prohibit same sex marriage. However, nine other states recognize civil unions, and in 2004 Massachusetts approved provisions allowing same sex marriage.

The questions are (1) if same sex partners can marry or enter into civil unions in certain states, how can these marriages and unions be undone; and, (2) what is the impact if the parties relocate to other states? These are not easy questions to answer, as an April 15, 2008 article in The Houston Chronicle noted.

Same sex couples married in Massachusetts are finding that other states will not permit them to seek dissolution. Additionally, couples who later relocated to another state find that if they do not meet the domicile and residency requirements under the Massachusetts family code, the state will not permit dissolution suits to move forward. While this may seem to be an unnecessary road block, the state has a legitimate interest in denying relief to parties who are not domiciled in the state. There are also constitutional considerations – the court can only adjudicate a matter if it has jurisdiction over the parties and issues. According to sources at The Houston Chronicle, to establish domicile in Massachusetts one must reside there for at least 12 months.  

Though same sex marriage and civil unions are hot topics, they recognized by a minority of US jurisdictions. With a highly mobile society, many of couples will find themselves relocating from the states where they entered into the marriage or union, and perhaps seeking assistance under the law to terminate the relationship. It is just a matter of time and parties making a constitutional argument. At some point laws of the various states (Texas included) must address issues of division of property, conservatorship and custody in same sex marriages/unions.

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In Texas premarital agreements are valid contractual agreements that allow prospective spouses to amend the “default” marital property rules, but premarital agreements are not recognized by all US states. This is an important factor to consider in today’s mobile society.

At the time this post was written, 27 states recognize pre-marital agreements in some form. The states include:

In 2008, states considering recognition of premarital agreements include Mississippi, Missouri, South Carolina and West Virginia.

For more information on the Uniform Premarital Agreement Act, visit http://nccusl.org/Update/uniformact_factsheets/uniformacts-fs-upaa.asp

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The Wills, Trusts, and Estates Professor's Blog posted a timely story on an update to the Texas Probate Code that deserves examination.  It will be interesting to see the results of this legislation in the Houston-area probate courts.

The 2007 Texas Legislature added Probate Code § 47A to authorize a court, under certain circumstances, to deem a decedent’s current marriage void for lack of mental capacity even after the decedent has died.  Acts 2007, 80th Leg., ch. 1170, § 4.01.  This section was designed to “undo” marriages entered into due to the actions of conniving and/or abusive caregivers.

1.  Types of Voidable Marriages

a.   Proceeding pending at time of death

If a Family Code proceeding to void a marriage based on lack of mental capacity is pending at the time of death (or if the court has been asked to do so in a pending guardianship proceeding), the court may declare the marriage void despite the death of the decedent.  The court must apply the same standards as for an annulment under the Family Code.

b.  Proceeding not pending at time of death

If a proceeding to void a marriage based on lack of mental capacity is not pending at the time of death, the court may nonetheless deem the marriage void under the following circumstances:

The decedent entered into the marriage within three years of the decedent’s death.

An interested person files an application to void the marriage on the basis of lack of mental capacity within one year of the decedent’s death.

The court finds that the decedent lacked the mental capacity to consent to the marriage and understand the nature of any marriage ceremony that might have occurred.

The court does not determine that after the date of the marriage, the decedent gained the mental capacity to recognize the marriage relationship and actually recognized the relationship.

2.  Result if Marriage Deemed Void

The surviving partner of the void marriage is not considered as the decedent’s surviving spouse for any purpose under Texas law.  For example, the surviving partner would not be able to receive an intestate share of the estate or claim homestead rights.

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Generally speaking, neither party to a divorce in Texas may marry a third party before the 31st day after the date the divorce is decreed.  However, if the parties wish to remarry each other, there is no waiting period .  Further, if either party can show good cause, the party may receive a waiver of the waiting period.  See Tex. Fam. Code Sections 6.801 and 6.802.

The purpose of the waiting period is to curtail impulsive remarriage.  However, this is easily defeated if a recently divorced person travels to another state. 

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Texas law provides that a county clerk may not issue a marriage license if either applicant is under 18 years of age.  See Tex. Fam. Code Section 2.101. 

However, if an applicant is between the ages of 16 and 18 years of age, the county clerk shall issue a marriage license if parental consent is given.  A parent must provide consent through a written declaration on a form supplied by the county clerk in which the person consents to the marriage and swears under oath that the person is the parent or a judicially designated conservator of the minor. 

Knowingly providing consent under false pretenses is a Class A Misdemeanor in Texas. 

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When a couple applies for a marriage license in Texas, the general rule is that the marriage ceremony cannot take place during the 72 hour period immediately following the issueance of the marriage license by the county clerk.  However, there are some exceptions to this rule which involve members of the U.S. armed forces, U.S. Department of Defense Employees, and persons who request a waiver of the waiting period. 

A bill which passed in the Texas House and Senate during the 80th legislative session would provide another exception for couples who complete an 8 hour pre-marital education course and can provide a certificate of completion not more than one year before the date teh marriage license application is filed with the clerk.  House Bill 2685 is awaiting Governor Rick Perry's signature.

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House Bill 180, also known as the "covenant marriage" bill failed to pass during the 80th Legislature's regular session, which closed just after Memorial Day weekend.  The bill would have created two classes of marriage.  Couples would have been required tochoose between a covenant marriage, where obtaining a divorce would require more procedural hoops, or a regular marriage.  The bill was purportedly drafted to reduce the number of divorce filings in the state's civil courts. 

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Couples who are avid about saving for retirement, or who have been married for a long period of time, often have significant assets in 401-K accounts. At the time of divorce, the deposits each spouse made into his/her 401-K during the marriage is community property subject to just and right division. Employer matching made during the marriage is also community property, provided that the employee is fully vested in the plan. Whether couples have agreed on how to divvy up these accounts or if the court makes a division, that is far from the end of the story.

401-K and pension plans are governed by the Employee Retirement Insurance and Security Act (ERISA), a federal law. 401-K and pension plans are administered by a plan administrator. No matter what the text of your divorce decree says, the plan administrator must pre-approve a qualified domestic relations order (QDRO) in order to divide the assets between spouses. Having a QDRO kicked back by the plan administrator potentially delays the division of assets and distributions. Therefore, attorneys often outsource the preparation of QDROs to consultants having special expertise in this area. 

Though this is another person on the divorce “payroll,” outsourcing saves time and money because the consultants have experience with various administrators and know what items are likely to cause a QDRO to be rejected. Whatever the flat fee charge for QDRO preparation, it is almost always less expensive than having your attorney charge by the hour to draft a complex document. 

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Susan Robicsek, author of the Bankruptcy Law Network recently posted an important article on balanced budgets and bankruptcy.  Since one of the top reasons marriages end in divorce involves financial strain, I think this article may provide benefit to many folks. 

When you rely on credit cards to cover things that don’t come up every month like car repairs, house repairs or medical issues, you have to recognize that your budget is not balanced. These things will come up and shouldn’t be a surprise when they do. In fact, there is little anyone can do to avoid them.
Maybe you use credit cards to buy groceries, because your paycheck goes to pay your other bills, like your rent/mortgage, car payment and credit cards or other revolving debt accounts.

If you are using credit to cover your living expenses or “emergencies”, you are spending more than you make to cover the things that occur in your life. When you have to borrow to pay for things you can’t afford now, you will pay back more when you consider the interest. So if you couldn’t afford to have something to begin with, why will it be easier to pay back more over time?

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This spring, the Texas Legislature began considering whether to revise the Family Code to include provisions for the creation and dissolution of a "covenant marriage."  Essentially, when couples obtain their marriage license from the County Clerk's office, they will have to elect whether or not they want a covenant marriage.   House Bill 180 is on the general calendar for May 8, 2007. 

The Texas House Committee's analysis indicates: 

C.S.H.B. 180 amends the Family Code to provide for the creation of a covenant marriage and the collection of applicable fees. The bill provides that applicants for a marriage license select either a covenant or non-covenant marriage license. The bill requires the county clerk to indicate on the marriage license whether the license is for a covenant marriage.

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Texas marital property has rich history with roots from the Spanish legal tradition.  Texas is also unique in that its marital property rights are constitutionally based.  Article 15 Section 16 of the Texas Constitution defines separate and community property, and the Texas Family Code also provides guidance as to the differences between separate and community property. 

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Common law marriage is legal terminology often casually used in conversation, but persons involved in marriages without formalities may not be aware of the statutory elements, or that the Texas legislature has revised the law several times since 1989.

Information regarding common law marriage is found in the Texas Family Code at 2.401 - 2.402. 

A man and woman may enter into an informal marriage by one of two methods:

• Executing a written declaration as described in Tex. Fam. Code Section 2.402; or
• By meeting a three prong evidentiary test:

1. the man and woman agree to be married;
2. the man and woman cohabitate in Texas;  and,
3. the man and woman hold out to other parties that they are married.

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In a recent poll of members of the American Academy of Matrimonial Lawyers (AAML), 49% of the divorce attorneys cited an increase in postnuptial agreements during the past five years. Interestingly enough, 58% of the respondents most frequently draw up the agreements as a result of a request made by both parties, rather than it coming from either a husband or wife individually.

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