Bigamy, Texas marriages and the Texas Family Code

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.

Is bigamy a crime in Texas?

Yes. Bigamy is a third degree felony under Section 25.01 of the Texas Penal Code. It is a crime to enter into a second marriage or to marry somebody you already know is married. The crime of bigamy under the Penal Code is not just a crime for the person who is already married. If you know somebody is married and marry them or purport to marry them, then the state can charge and convict you of bigamy.

According to the Texas Penal Code bigamy is defined as:

Sec. 25.01. BIGAMY. (a) An individual commits an offense if:

(1) he is legally married and he:

(A) purports to marry or does marry a person other than his spouse in this state, or any other state or foreign country, under circumstances that would, but for the actor’s prior marriage, constitute a marriage; or

(B) lives with a person other than his spouse in this state under the appearance of being married; or

(2) he knows that a married person other than his spouse is married and he:

(A) purports to marry or does marry that person in this state, or any other state or foreign country, under circumstances that would, but for the person’s prior marriage, constitute a marriage; or

(B) lives with that person in this state under the appearance of being married.

(b) For purposes of this section, “under the appearance of being married” means holding out that the parties are married with cohabitation and an intent to be married by either party.

Although bigamy remains a crime in Texas, it is rarely charged and even more rarely results in a conviction. Unless bigamy resulted in a severe harm to the second spouse and the second spouse was unaware of the prior marriage then I would not count on a jury convicting somebody for bigamy. If you believe your spouse is a bigamist, then you could report the crime and allow the criminal process to unfold.

What is the statute of limitations for bigamy in Texas?

Under the Texas Penal Code the statute of limitations for bigamy is seven years.

Can a common law marriage constitute bigamy in Texas?

Absolutely. Sometimes bigamy occurs because a married person separates from their spouse without divorcing and then enters into a common law marriage with a new person. The now twice married person may believe that they can treat the second spouse as a marriage by telling people they are married and skirt the legal requirements to first divorce the first marriage. Although there is a certain rationale to making this decision it is still bigamy.

A common law marriage occurs when three conditions are met:

  1. Two people agree to marry;
  2. They live together;
  3. They tell other people they are spouses.

This is exactly what happens in these situations. It does not matter that the second marriage did not involve a ceremony or obtaining a marriage license. A common law marriage in Texas has the same legal effect as a formal marriage.

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.

How do I prove bigamy in Texas?

Unfortunately some people discover after a wonderful wedding ceremony that their spouse was already married to somebody else. Your spouse may have honestly believed the marriage had ended in a divorce or thought the marriage ended after a period of separation. Worse, your spouse may have known and simply not cared. Any of these situations can be a painful discovery. Your discovery may destroy trust to the point you no longer want to be married to your spouse and may even want to expose your spouse to criminal prosecution.

Bigamy in formal marriages

If both the earlier marriage and your marriage were formal marriages with marriage licenses, then proving bigamy may be fairly easy. Both licenses prove an attempt to carry on two marriages if there is no evidence of a divorce ending the first marriage.

Bigamy in common law marriages

If one or both marriages arose out of a common law or informal marriage then proving bigamy is more difficult. To prove bigamy you must prove the existence of each common law marriage involved plus a lack of divorce ending the earlier marriage. Proving the existence of a common law marriage is not as easy as producing a marriage license. You must prove each of the elements of a common law marriage. That may be difficult if neither spouse to a common law marriage are helpful witnesses for you.

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 Texas 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.

Divorcing a Second Marriage: The 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.

property division in a Texas divorce

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 child custody lawsuit to have a court order custodial 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.

Other financial considerations in 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 Texas 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.

Getting out of a bigamist marriage in Texas

Getting out of a bigamist marriage is no more difficult than any other divorce if you want to simply walk away from the marriage. If you want to try to obtain some of the property acquired during the marriage, then the divorce becomes far more difficult. Issues around proving the second marriage and your putative spouse status are complex legal questions. These legal questions are among the most complicated under the Texas Family Code. While I would always recommend hiring an experienced divorce attorney for any divorce, these situations definitely need experienced legal counsel to help guide you through this process and prove your case.

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