Texas Divorce Attorney Blog
Texas is one of the few states that still recognizes “informal marriage,” also sometimes known as “common law marriage.” A party who petitions for divorce from an informal marriage often must prove the existence of the informal marriage in the first place. To prove there was an informal marriage, the party must show the couple had an agreement to be married, subsequently lived as spouses together in Texas, and represented themselves as married. Tex. Fam. Code Ann. § 2.401. Furthermore, all of these elements must occur at the same time. Evidence of an informal marriage may include evidence the parties addressed each other as spouses, conducted themselves as married people, or lived together. Evidence that the parties lived together and represented themselves as married is not alone sufficient to establish the existence of an agreement to be married.
In a recent case, an alleged husband challenged the court’s finding of the existence of an informal marriage. The parties moved to Texas from Colorado with the alleged wife’s two children in 1985. They separated in early 2012. In 2015, the alleged wife filed a trespass to try title suit, claiming joint ownership in real property due to an informal marriage. That lawsuit was consolidated with her subsequent divorce action.
The trial court ultimately found the parties had been in an informal marriage. The court granted a divorce and divided their property. The husband appealed, arguing there was insufficient evidence to support the existence of an informal marriage.
In a Texas divorce, a jury may decide issues regarding the characterization and valuation of property, but the judge is responsible for actually dividing the community property in a just and right manner. The court may consider a number of factors, including fault, education, ages and physical conditions, financial conditions, and the amount of separate property. Generally, the court must hold an evidentiary hearing or trial, unless the parties agree on the property division.
Retirement benefits can be a complex and contentious issue in a Texas divorce case. Generally, any income earned during marriage is considered community property unless proven to be separate property, including funds contributed to a retirement account or earned as pension benefits. In a recent case, a husband 
In Texas custody cases, it can be very difficult for a non-parent to obtain custody or visitation of a child over the objection of a parent. In some circumstances, however, a non-parent (such as a grandparent) has the right to file suit seeking custody or visitation. One such circumstance is when the person has recently had care, custody, and control of the child for at least six months.
Sometimes parents disagree about whose surname a child should have. Texas family law allows a court to order a name change for a child if the change is in the child’s best interest. Tex. Fam. Code Ann. § 45.004. Additionally, when a court adjudicates parentage, it may order a name change if a parent requests it and “for good cause shown.” Tex. Fam. Code Ann. § 160.636. Some appeals courts have held that those are two distinct tests, while others have held that the child’s best interest is necessarily good cause and simply determine if the change would be in the child’s best interest even when the name change is requested pursuant to § 160.636.
Texas family law includes a presumption that parents should be appointed joint managing conservators. The law does not require, however, that the parents be given equal possession just because they are joint managing conservators. Tex. Fam. Code § 153.135. There is a rebuttable presumption that the standard possession order is in the child’s best interest, but that presumption only applies to children who are at least three years old. For younger children, the court must consider “all relevant factors.” The statute specifically requires the court consider who provided care before and during the proceedings, how separation from either party may affect the child, the availability and willingness of the parties to care for the child, and the child’s needs, along with other specified factors. Tex. Fam. Code § 153.254.
When a divorcing couple reaches a Mediated Settlement Agreement (“MSA”) that meets the statutory requirements, the parties are entitled to a judgment on that MSA. Tex. Fam. Code Ann. §§ 6.602(c). In some cases, however, things can change after the MSA is agreed upon. In a