Bigamy, Texas marriages and the Texas Family Code by Bedford divorce attorney Adam Kielich
Talk about bigamy today and you might find yourself in the middle of a debate about the long term results of the Supreme Court declaring DOMA unconstitutional; but bigamy is a problem for Texas marriages outside of the DOMA issue. Under the Texas Family Code an individual can have only one spouse and all other marriages are void. The Texas Criminal Code also makes bigamy a criminal offense in the state. Bigamy can and does occur in Texas in several situations. There is a history of employees migrating around Texas entering into common law marriages although they have formal marriages elsewhere. Sometimes bigamy inadvertently occurs when a person believes a prior marriage ended and remarries, only to find out later the first marriage still exists. If you find yourself in a bigamy situation and need a divorce then you should contact a Texas divorce lawyer to start that process.
Bigamy and the Texas Family Code
The Texas Family Code permits every adult to enter into one marriage and all other marriages are void by law. The Texas Family Code defines the first valid marriage still in existence as the valid marriage. All subsequent marriages are void until the first valid marriage is dissolved. For example, if you have been marriage twice and both of those marriages ended in divorce. You marry a third time. That third marriage is a valid marriage because it is the only active marriage. However, during the third marriage you run off to Vegas after a wild night in Fort Worth and get married. That forth marriage is void because the third marriage is valid and precedes the forth marriage in time.
What does that mean for the second spouse?
The Family Code states without exception that the earlier valid marriage automatically voids the latter marriage. If the earlier valid marriage ends by either divorce or death of the first spouse then under the Texas Family Code, the latter marriage becomes valid at that time if at the time of the dissolution of the earlier marriage the spouses to the latter marriage live together and represent themselves as married. It converts the second marriage into a common law marriage beginning on the date of dissolution of the earlier marriage.
It is important that you understand that if you remain in the relationship while the earlier marriage is still valid, you will not have any of the rights or responsibilities of a spouse so long as the earlier marriage exists. That means no spousal privilege, no tax benefits, no statutory authority to life-and-death decisions and no right to death benefits. Instead, the earlier spouse will retain those rights. That includes rights as spousal beneficiary to 401k plans and other employment benefit plans.
Additionally, everything your spouse earns while he is still in the earlier marriage is community property of that marriage. That may wreak serious havoc on your savings, retirement planning and even your ability to keep your home. For those reasons, it is usually a bad idea to let the prior marriage go on.
If you discover your spouse has a prior, valid marriage, you may not want to wait out the first marriage. You may not want to stay with your spouse. Or you can leave the relationship. You do not need to file for divorce or an annulment because the marriage does not exist. There is nothing to divorce or annul. However, there may be some legal steps you can take to protect your rights. You can obtain a declaration from a family court stating the marriage is void. You do not have to obtain the declaration but it is a good idea to protect your property and protect you from later assertions that you are in multiple marriages at some point in the future.
Child Issues in Dallas, Texas and Fort Worth, Texas
If you have children with the would-be spouse of your void marriage, and you are going to leave, then you should think about how the management, possession and support of your children will occur. It is a good idea to file a SAPCR (suit affecting the parent-child relationship) to have a court order divide management and possession roles for each parent and assign child support. You do not have to obtain these orders but it is a good idea to clearly define the relationships with the children, especially since you are dealing with a person who has had problems defining their relationships in the past.
Even if the parental relationship is amicable today, it may not be as amicable down the road. The child orders are often something you do not think you need until you really need them. Then it’s too late to have them available in that moment. Then you have a crisis to deal with and have to sort out that situation and then work towards getting those orders.
Putative Spouse in Texas
In Texas, the Family Code provides for something called a putative spouse. A putative spouse is the spouse in the latter marriage when that person has a reasonable and good faith belief that the latter marriage is valid and acts as though he or she is the spouse of the bigamist. A putative spouse has a remedy to recover some of what would be community property of the latter marriage, along with repayment of his or her assets used towards the latter marriage. It results in a property division similar to a divorce.
A key issue for putative spouses is that the right to recover stops as soon as the putative spouse knows or should know that there is an earlier marriage. You can only recover for the time between the start of the latter, void marriage and when you discover the existence of the prior marriage. You must file your claims under the putative spouse provision with the family court to recover.
Other financial considerations in Dallas, Texas and Fort Worth, Texas
Any assets you have with your would-be spouse, such as a house, car, or bank account, along with any debts you both signed, such as a mortgage or credit card, may become issues when you leave this relationship. Aside from putative spouse provisions, you do not have the same rights under the Family Code to obtain a property division. Instead, you must work out how to divide assets and debts like any non-marital relationship. There may be records necessary to take one off the house or vehicle. The debts may be a sticky issue. You cannot take a person off a debt without refinancing it under the name of one person.