Byron R. Berry

Here is an actual fact situation I have come across. Dad gets a divorce after 30 years of marriage. This marriage now has two grown children, named Kids. In June, Dad runs off to Hawaii and has an unofficial “promise” ceremony with Lady, and they live in bliss for all of three months before he dies of a heart attack.

Kids come in with Dad’s Will which they proudly point out leaves everything to them in equal glorious shares. They also point out to me that Dad couldn’t be married to Lady since there was no legal marriage, and even if there was, they didn’t have time to build up any community property.

Not so fast boys. In Texas, you can have a common law marriage if there is a promise to be married, a publication to the general public that there is a marriage, and cohabitation. Dad and Lady did have this ceremony and did live together there is no denying that, but Dad didn’t tell us. So there can’t be publication, right? Unfortunately what Dad didn’t tell   Kids isn’t as important as what Dad told his buddies, added to the fact that Dad’s email auto response for the time he was in Hawaii says, “Sorry I can’t respond to you right now, I’m in Hawaii on my honeymoon.”

So they are married for three months. They have no community property. What does Lady possibly get?

Actually, quite a few things that Kids aren’t going to like.

First, she gets a homestead interest in the family house that in this case is worth $400,000 and is paid for. She is responsible for ad valorem taxes, utilities, and upkeep. So for as long as she lives and calls the place home, she gets the house that Kids grew up in. Bring in her children from a former marriage to play where Kids once played, have her new boyfriend, who is half her age, come over and… well you get the idea. And what if she refuses to pay the taxes. Well if she is under 65, the taxing authority is going to foreclose, but are Kids really going to let that happen? They will grudgingly pay them to protect their inheritance.

Second, she can apply for a family allowance. This is the amount of money necessary for Lady to live for one year. There are several things taken into consideration to arrive at this number, but we will assume that Lady has no separate property, and shows the court she needs $48,000 to squeak by for the next year. That’s $4000 a month but remember she has to pay taxes and utilities for that huge $400,000 house she is being forced to live in, so its pretty easy to get to a large number here. Now she can get that money in a number of ways. She can take it monthly, or in a lump sum or even get it in assets that are going to someone else. So if there isn’t enough money in Dad’s estate, that family heirloom of your great granddad’s that you thought you were going to keep in the family, may have to be given to Lady.

And the last thing she can get from being adjudicated the wife of Dad is certain pensions and government benefits that Dad worked for all those years. Kids have some leverage here since Lady won’t get anything unless she gets a judgment saying she is the wife.

So Kids walk in thinking there isn’t going to be a fight and walk out with the knowledge that Lady has a lot to gain and very little to lose.

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