Who is familiar with Common Law Marriage?

[sh4dowf4lcon]

I have a good friend who whose father just moved in with this lady. The man bought a nice house in Rockwall, TX. He moved his girlfriend out of her rented house and into this 4500 sq ft home. They have been dating for like 8 years. He refuses to get married, he has children that are grown from his first and only marriage. She wants to marry, but he wont make that commitment. The house is in his name, their cars are in his name, he makes the payments on everything. He is fairly wealthy, not millionaire but probably pretty close.

Now the Father has given my friend a hand written Will. I told my friend that is not legal, it has to be taken to an attorney and filed with papers to be a legitimate Last Will & Testament. The Will basicly says, "My kids get everything split equally" "I want them to sale my real estate and posessions and split the money between the three of them (children)" "... give gf $25K so she can find a place to live and get on her feet..."

Now that they live in the same house, I told my friend this changes things. He sleeps in the master BR she sleeps in a separate room upstairs "her bed room". I guess they sleep in the same room sometimes, but definately not every night according to my friend.

In Texas after living together 6 months I believe you are considered Common Law Husband & Wife. Does this mean if 7 months from now he asked her to move out, she would have legal recourse to force him to give her some of his cash, business acounts, personal accounts, or 50% of the home value?

Also, what if he had an accident 7 months from now? Would his assets become hers? What if he does not have a legal Will filed? Does his handwritten will give enough to keep a court from giving the lady all of his assets or even half of the assets? Would his children have a chance fighting her in court for the money and the house?

Also, they aren't getting along since they moved into same house. It appears they are not compatible and he should make her move out. He is a fair man and does not want to do the lady dirty. BUT isn't he leaving himself & his children open for major problems if they live together longer than 6 months?

experiences? knowledge? anyone know about this stuff?

BTW, I already suggested he talk to his dad about the common law stuff and have his dad go visit an attorney.

 

[sh4dowf4lcon]

BTW, I know this aint no BB question. It is a legal question and this is the EF Legal forum, so if you know anything help out. If you dont know anything, shutup.

 

[liftshard]

Yeah, I know about all this shit.

If the law of the state says that you're effectively married after cohabitating for xyz period, then you are effectively married. Then, you would need to look at the property division statutes with respect to divorce or survivorship...but after you've looked at what constitutes "cohabitation" in Texas.

Essentially, a will is valid if it evinces the requisite testamentary intent and very little else. Wills have been admitted to probate that were handwritten onto the inside of a desk drawer. However, specific requirements of the state need to be examined.

Typically, a woman cannot get at assets which were premarital in a presumptive divorce. They are considered sole property. She would normally be entitled to 50% of assets acquired during the marriage. However, if you comingle your assets, they may be deemed community property by the state even if originally separate property.

Survivorship is different. Once married, she has a wife's claim to the deceased's estate. Every state has laws on intestate succession, but rest assured that if the amount in question is significant enough, a court fight is inevitable.

If there is significant money involved, I would suggest that he get his ass to an estate lawyer or probably a divorce lawyer and discuss the situation with them. I am not an expert on Texas family and probate law and my advice can only be considered within a generic perspective. Nobody wealthy should ever move in with someone without knowing the potential scope of risk to their assets.

 

[The Wenis]

To have a common law marriage in Texas, you must do three things:
(1) have an agreement to be married
(2) hold yourself out to a third party as being married, and
(3) live together
While common law marriage in Texas has the same legal status as a ceremonial marriage, you have to get a formal divorce with either common law or ceremonial marriage. (© 1999 James Patrick Smith)

you can send this link to your friend to look at it contains the tx family law statutes.
http://www.capitol.state.tx.us/statutes/fa.toc.htm

 

[BaadOldBear]

To have a common law marriage in Texas, you must do three things:
(1) have an agreement to be married
(2) hold yourself out to a third party as being married, and
(3) live together
While common law marriage in Texas has the same legal status as a ceremonial marriage, you have to get a formal divorce with either common law or ceremonial marriage. (© 1999 James Patrick Smith)

you can send this link to your friend to look at it contains the tx family law statutes.
http://www.capitol.state.tx.us/statutes/fa.toc.htm

Be very aware that some texas judges are very liberal in their interpretation of "Holding out" as married. And on appeal the case is tried de novo and appellate judges will favor the lower court's interpretation of "fact" issues.

 

[Gran8Rocks68]

Be very aware that some texas judges are very liberal in their interpretation of "Holding out" as married. And on appeal the case is tried de novo and appellate judges will favor the lower court's interpretation of "fact" issues.

the best way to get away from all the lawyer BS...is to look into a ...if I have this correct its called irevolkable account and living will ...it basically is a way of giving away your entire estate before you pass to your kids but while you are alive you and only you have access to it. ..... tell him to check this out that will cover his ass...if thats not the right name for it e mail me I look it up in the book for you....

good luck

 

[Gran8Rocks68]

oh yea he will also have to name one of the kids or someone he can trust to be the treasurer or something to that effect.....

 

[BaadOldBear]

the best way to get away from all the lawyer BS...is to look into a ...if I have this correct its called irevolkable account and living will ...it basically is a way of giving away your entire estate before you pass to your kids but while you are alive you and only you have access to it. ..... tell him to check this out that will cover his ass...if thats not the right name for it e mail me I look it up in the book for you....

good luck

Texas is a community property state and that trumps all post marital considerations. His best out would have been a pre-live in contract between the 2 parties governing the properties respectively.

 

[Gran8Rocks68]

Texas is a community property state and that trumps all post marital considerations. His best out would have been a pre-live in contract between the 2 parties governing the properties respectively.

dam Texas is tuff...wow wee.... I guess thats why the second time is pre nup time... I won't get married again without one... I lost my entire company to my first... remember buisness doesn't mix with pleasure...

 

[BaadOldBear]

dam Texas is tuff...wow wee.... I guess thats why the second time is pre nup time... I won't get married again without one... I lost my entire company to my first... remember buisness doesn't mix with pleasure...

Yeah. My first ex was my bookkeeper and while I managed to keep the business going for 4 years after the marriage, my health and the IRS eventually finished me off due to the missing money from her time as bookkeeper.