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Family Law Dictionary: Common-Law Marriage

Yes, there is common-law, or informal, marriage in Texas. However, it isn’t simply living together that creates an informal marriage. In Texas, there are four elements that must be met in order to establish an informal marriage. First, the people involved must agree to be married from that moment forward, not at some point in the future. An engagement with the intent to marry in the future is not sufficient to satisfy this element. The agreement to be married can be oral or written and can be proven by either direct or circumstantial evidence. Second, the people involved must live together in Texas as husband and wife. This cohabitation means maintaining a household and doing those things ordinarily done by a husband and wife, not just residing under a common roof and having sexual relations. The third element is “holding out” to others in Texas that they are married. So, parties that agree to be married and live in the same home but do not tell the public at large that they are married are not deemed to be informally married. “Holding out” is not only exhibited by words alone, but also actions. A woman changing her last name to the man’s last name can constitute “holding out.” Another example of “holding out” is signing a credit application as husband and wife, or even a wedding guest book as “Mr. and Mrs. Smith.” Fourth, the people involved must have the capacity to enter into an informal marriage. In order to have capacity to enter into an informal marriage, they must be members of the opposite sex, at least 18 years of age and not related to each other as prohibited by the Texas Family Code.

An informal marriage begins when all these elements are satisfied and the parties have the capacity to marry. There is no informal divorce; an informal marriage must be dissolved in the same manner as a traditional, ceremonial marriage — divorce. Informal marriages have the same legal consequences and effects as a ceremonial marriage.

Outside the Law

Since lawyers read all the time, I normally do not recommend books to other lawyers. But I have been collecting and reading books for a long time, and every once in a while a book comes along that I have to recommend, purely based upon its life-changing nature. “A Million Miles in a Thousand Years: What I Learned While Editing My Life” by Donald Miller is that kind of book.

You may remember Miller because he wrote “Blue Like Jazz.” However, after “Jazz” sold more than a million copies and his other books didn't, Miller was stuck with a case of writer’s block. Then out of the blue, two movie producers contacted Miller about creating a film out of his life. But Miller learns in the process that his real life needs doctoring lest it be too directionless for the screen. Real stories, Miller learns, require characters who suffer and overcome. The book tells the tale of Miller setting out to change his own life, to be the kind of guy who seeks out his father, chases the girl and undertakes a quest. What I really enjoyed about the book is Miller's insights into the writing process, specifically the creation of a story.

I know that summer is almost over, but this is the type of book that you start and finish reading at the pool. The truth is you will learn a lot about Miller and yourself along the way.

Can a Divorce Impact Your Immigration Status?

Many individuals obtain legal immigration status in the United States based on their marriage to a United States citizen, United States permanent resident or a beneficiary of an immigrant petition. A common misconception people have is that if a person in this situation gets a divorce, he or she will automatically be deported. Generally, this is not true; however, divorce can in some cases impact an individual’s immigration status.

A permanent resident is someone who has been granted authorization by the United States Citizenship and Immigration Service (USCIS) to live and work in the United States on a permanent basis. An individual can obtain permanent resident status (or a green card) based on their marriage to a United States citizen or permanent resident. Additionally, many people become permanent residents through a job or offer of employment. When an individual obtains permanent residence based on a job, that individual may also obtain permanent resident status for his or her spouse. In these instances, the spouse obtains permanent resident status by qualifying as a derivative beneficiary. Other individuals can obtain temporary legal status if they are married to a beneficiary of an immigrant petition. For example, the spouse of an H-1B specialty worker may obtain legal status (H-4 status) solely based on the legal status of his or her spouse.

Getting a divorce may adversely impact an individual’s immigration status if the divorce occurs before permanent resident status is conferred. In these cases, the beneficiary or derivative beneficiary will no longer be eligible for permanent resident status. Divorce can also adversely impact an individual’s immigration status when the status was obtained based on marriage to a United States citizen or permanent resident if the marriage took place two years before the date permanent resident status was conferred. In this situation, an individual will receive what is called “conditional permanent residence.” Conditional permanent residence means that the permanent residence is only valid for two years. Your permanent resident status is conditional, because you must prove that you did not get married to evade immigration laws and for purposes of obtaining permanent residence status.

Normally, the conditional permanent resident and the spouse must apply jointly to remove the conditions on their residency. The conditional permanent resident must apply to have the conditions removed 90 days before the permanent residence status expires. If a person’s spouse withdraws the petition, the individual’s conditional status can be terminated and the individual may be placed in deportation proceedings. However, the individual can apply to waive the joint filing requirement. A waiver is granted and the conditions will be removed if the individual can prove to the immigration service that the marriage was entered into in good faith.

Divorce does not adversely affect an individual’s immigration status if the individual obtains permanent residence without conditions. The only affect divorce may have on an individual who obtains permanent residence without conditions is that it may delay the person’s ability to apply for citizenship. If an individual is married to a United States citizen, he or she must only be a permanent resident for three years as opposed to the normal five-year requirement to be eligible for citizenship.

Divorce is never easy, and not knowing how a divorce affects your immigration status can make it even more difficult. An attorney who is familiar with all these procedures can help your immigration process move smoothly and make life easier for you.

The Effect of Bankruptcy on Divorce

By Monica Peters

The Wright Firm, L.L.P.

It is said that the most common cause of marital discord is financial stress.  It should be no surprise then that frequently during the divorce process, one or both parties consider filing for bankruptcy.  Before deciding if and when one will seek relief under the federal Bankruptcy Code, it is important to understand several things.

First, once a bankruptcy is filed the federal bankruptcy court has sole legal control of all of the debtor’s assets.  While most if not all of a debtor’s assets are typically protected by law from seizure by a trustee for the benefit of the creditors, those assets are still considered a part of the bankruptcy estate.  This is important because it means that the debtor cannot sell or transfer any of this property without first acquiring the consent of the trustee or the bankruptcy court.  It also means that the trial court handling the divorce cannot divide the assets of the marital estate without the bankruptcy court first granting permission.  Until the trial court can divide the debts and assets of the estate, it cannot grant a divorce.

The good news is that the debtor and the debtor’s spouse do not necessarily have to wait until the bankruptcy is final before proceeding with the divorce in state court.  While waiting is an option, it is typically not a very good option, particularly if the debtor has filed under Chapter 13 of the federal Bankruptcy Code, as these cases typically take five years to complete.  The solution is for an attorney for one of the parties in the divorce to file a Motion to Lift Stay, requesting the federal court to grant the state court permission to proceed with a division of the community debts and assets.  The federal court will almost always grant a Motion to Lift Stay in this circumstance, particularly if all of the debtor’s property has already been established as exempt from sale to pay the debtor’s creditors.  Once the federal court has signed the order granting the Motion to Lift Stay, the divorce may proceed as usual in the state court.

The state court does not completely have its hands tied while it awaits the order lifting the stay.  The state court may proceed on any issue regarding the best interests of the children of the marriage, including but not limited to ordering the payment of child support by either party, conservatorship, and possession and access.  The state court can also make temporary orders regarding spousal support, the payment of expenses, and the use of property during the pendency of the suit and for the preservation of that property.  However, until the federal court has entered the order lifting the stay, the state court cannot make any orders that would divest either party of an interest in a piece of property, such as ordering that property be sold.

Prior to filing for bankruptcy during a divorce, it is important to consider if it is better to wait until after the final decree of divorce has been entered. If a Chapter 7 Bankruptcy is filed, then the debtor’s debts will be discharged within approximately four months from the date of filing the bankruptcy, assuming that the bankruptcy is handled properly. If the order discharging debts is received prior to the entry of the final decree of divorce, then it is possible that the trial court will decide that the community debts remaining should still be divided equally between the parties.  Then the party who had filed for bankruptcy could end up being ordered to pay half of the debts in the opposing party’s name.  That order would be enforceable by the state court.  Had the debtor simply waited to file for bankruptcy until after the divorce had been finalized, the debtor would have discharged much of the debt he or she had been ordered to pay by the state court and would only be left to pay any debt that he or she was ordered to pay and which was either a joint debt or a debt in the other party’s name.

Understand that, even if a bankruptcy is filed after the entry of the final decree of divorce, the bankruptcy will only discharge those debts held solely in the name of the debtor.  Therefore, any joint debts or debts in the debtor’s ex-spouse’s name will remain collectible.  If the debtor were ordered in the final decree of divorce to pay any of these kinds of debts, they still must be paid by the debtor.  While it is true that the creditors will not try to collect these debts from the debtor, the creditors will almost certainly seek to collect these debts from the debtor’s ex-spouse, or at least will file a negative report on the ex-spouse’s credit report.  The debtor will be in violation of the final decree of divorce and the ex-spouse may file a Motion to Enforce, seeking the payment of the debts as well as any other damage he or she incurred including attorney’s fees and court costs.  Further, filing for bankruptcy does not discharge debts owed for spousal support, child support, medical support or any other domestic support obligation.

There are many things to consider prior to filing for bankruptcy.  The questions become significantly more complicated when the bankruptcy is intertwined with a divorce case.  That is why it is so important to ensure that one consults an attorney who is experienced in the area of bankruptcy before filing any documents with the federal court.  However, done correctly, bankruptcy can be an excellent tool for rebuilding one’s life after a divorce.

About the Author:

When Monica Peters chose to move to the Dallas-Fort Worth area to begin her practice of family law, she brought with her the common-sense, straightforward approach to life that marks so many of those who live in her native home. Ms. Peters was born and raised in rural West Texas on a sheep and cattle ranch that has been owned and operated by her family for six generations.

 After graduating from law school, Ms. Peters joined The Wright Firm, L.L.P. as an associate attorney. Ms. Peters has devoted her practice to issues involving children and families, as well as to the practice of bankruptcy law. She has handled the entire spectrum of family law issues, including but not limited to divorce, property division, spousal support, child custody, child visitation, conservatorship and child support. She has also represented both children and parents in cases involving the Department of Family and Protective Services. She has further assisted countless clients struggling with debt to attain a new beginning financially through bankruptcy relief.  While Ms. Peters has assisted many of her clients in reaching amicable resolutions to their cases through both mediation and informal settlement methods, she has also successfully represented her clients in countless contested hearings and final trials.

Strategic Foreclosures – Is It Better to Save Your Home or Walk Away?

By: Lauren Timmerman, Esq.

The Wright Firm, L.L.P.

One of the most talked about topics in the area of mortgage default is the issue of “strategic defaults.” A strategic default occurs when a homeowner is able to pay his or her mortgage, but chooses to stop paying it and allows the home to go into foreclosure. A traditional default occurs when a homeowner can’t pay his or her mortgage, can’t work out any other options with the mortgage company, and is forced into foreclosure.

The number of strategic mortgage defaults is steadily rising. According to the Wall Street Journal, current studies show that as many as 12 percent of current mortgage defaults are strategic defaults. The most common reasons for strategic defaults are that the homeowner decides it’s a better plan, economically, to walk away from a home that’s valued significantly lower than what’s owed on the home (the homeowner is “underwater” on the home), or the homeowner knows that in the current real estate market he or she can buy a similar home in the same neighborhood for much less than what’s owed on his or her current home. Current statistics show that approximately one out of four homeowners is “underwater” on his or her home — he or she owes more on the house than what the house is worth.

Mortgage default, whether strategic or not, has significant negative effects on one’s credit, with the resulting foreclosure staying on one’s credit report for at least seven years. Those homeowners who engage in strategic default may feel the economic benefits outweigh the negative impact to their credit scores. Traditionally, people who had experienced a foreclosure had to wait five years from the date of their prior foreclosure to be considered for a new government-backed mortgage through Fannie Mae or Freddie Mac. This requirement has changed, however, due to the rise in strategic defaults.

Fannie Mae recently implemented new rules that are much tougher on homeowners who strategically default as opposed to homeowners who face traditional  foreclosure. Fannie Mae will now make homeowners who went through a strategic default or foreclosure wait seven years from the date of foreclosure to be considered for a new government-backed mortgage, while those homeowners who can show they made a good-faith effort to repay their loan or work out an alternative arrangement (loan modification, deed in lieu of foreclosure, etc.) with their lender but still suffered foreclosure will only have to wait three years to be considered for a new government-backed mortgage. If those homeowners completed a short sale or deed in lieu of foreclosure to avoid foreclosure, then they only have to wait two years to be considered for a new mortgage.

Fannie Mae has also promised to ramp up its litigation efforts and sue those homeowners who have strategically defaulted for the balance left on the mortgage once the home has been sold at a foreclosure sale (“deficiency”), in states that allow for recovery of that deficiency. Industry experts have opined that Fannie Mae is trying to prevent strategic defaults from becoming socially acceptable, as strategic defaults can harm the value of neighboring homes and slow the recovery of real estate values across the country. 

Fannie Mae’s recent announcement of these new rules and policies caused much debate in the legal and financial community, with some experts coming out in support of strategic default and others supporting Fannie Mae in its tougher policies. Fannie Mae spokespeople maintain that the tougher rules are an effort to encourage homeowners to work with their mortgage lenders to find an alternative solution to foreclosure.

Dealing with mortgage default and making the decision to walk away from one’s home, whether voluntarily or involuntarily, is never easy. As always, consumers with questions about mortgage default and its possible effects should consult a licensed attorney in their state.

Lauren Timmerman is an associate with the firm, with a primary practice in bankruptcy. She graduated magna cum laude with a bachelor of arts from Wayne State University in Detroit, Michigan, where she was a member of Phi Beta Kappa, Golden Key Honor Society and Phi Eta Sigma Honor Society. Lauren then continued on at Wayne State to receive her law degree. During law school, she served as managing editor of the Journal of Law in Society and won numerous awards for brief writing and oral argument in moot court competitions.

After receiving her Juris Doctor, Lauren worked with the firm of Deloitte & Touche, LLP, advising large-scale corporate clients and high-net-worth individuals on tax and financial issues, including financial planning proposals and reviewing corporate, trust and individual tax returns. She then moved to the firm of Hammerschmidt, Stickradt & Associates, PLLC, where she primarily practiced in bankruptcy. She continued her focus on bankruptcy cases in her work at Marrs & Terry, PLLC, where she managed satellite offices in addition to her representation of debtor and creditor clients. Lauren also served as a managing attorney in bankruptcy at Schneiderman & Sherman, PC, where she managed creditor-based bankruptcy and loss mitigation practices for nationwide clients.

Lauren is a member of the State Bar of Michigan, and is admitted to practice in the U.S. District Courts for the Eastern District of Michigan, the Western District of Michigan, The Eastern District of Texas and the Northern District of Texas. Lauren is not yet admitted to the State Bar of Texas. Her admission to the State Bar of Texas is pending.

 

BP litigation gets rolling in Boise

Yes, that's right.  Boise, Idaho.  Seems a bit strange when you consider the BP disaster happened, you know, in the Gulf of Mexico.  Which would be nowhere near landlocked Idaho.

The real reason behind the choice of location has to do with the United States Judical Panel onMulti-District Litigation.  In really complex lawsuitswhere cases are pending in more than one Federal Judicial District (like those against BP), the Panel decides whether all those cases should be transfered into one district court for pre-trial proceedings.  The Panel meets all over the country in pre-scheduled cities.  Boise just happened to be the next city on the calendar.

Personal Injury attorneys are now flocking to the mountain town - some complaining (allegedly) of its lack of a 5-star hotel - to argue over where the cases should be moved next.  The plaintiffs want New Orleans, while the defendants are hoping for Houston.

While they hash it out, the attorneys can sit in semi-luxury at their *gasp* 4-star hotel, safe in the knowledge that their shrimp cocktail and oysters rockefeller came from Pacific waters...

Don't eat the worm

They really have a holiday for everything now.  "National Talk Like a Pirate Day,"  "Embrace Your Geekiness Day"... I'm sure the lolcats have their own day as well.  Well, here's a holiday that I think lots of us can get behind:  tomorrow, dear readers, is National Tequila Day!

FoxNews.com has posted an article giving some of the history and finer points about tequila.  For example, did you know that Tequila is North America's first native-born spirit? 

However you decide to celebrate this day of jubiliation, we at the Wright Firm, hope that you enjoy it responsibly.  And if you don't enjoy it so responsibly, we do provide DWI defense services.

Happy Friday everyone!

Only in Oklahoma

In a move both ridiculous and oddly creative, an Oklahoma woman used men's underwear as a mask when robbing a Midwest City MacDonalds on Tuesday night.  Police report that a surveilance video shows a middle-aged woman walk up to the MacDonald's drive-through window wearing dark clothing and what appear to be men's tightie-whities over her face, held in place by paper clips.  The depiction at right is merely this blogger's interpretation and not the actual bandit.

Apparently the woman reached inside the drive through window and opened the cash register drawer with a key.  This leads me to ask a few questions:

1) Why wasn't an employee standing at the register?

2) How on earth did the bandit have a key?

3) Is it really possible that no one - employee or MacDonald's patron - noticed a woman walking around with tightie-whities on her head?

The diguise seems to have worked, at least thus far, as the woman is still at large and unidentified.  Word to the wise for any male bandits who may want to copy-cat by using women's underwear as mask:  stick with granny-panties.  Thongs just won't provide enough coverage.