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Divorce Questions 101

IS MY MARRIAGE VALID?
In order to promote the public health and welfare and to provide the necessary records, the Texas Family Code specifies detailed rules to be followed in establishing the marriage relationship. However, in order to provide stability for those entering in to the marriage relationship in good faith and to provide for an orderly determination of parentage and security for the children of the relationship, it is the policy of this state to preserve and uphold each marriage against claims of invalidity unless a strong reason exists for holding the marriage void or voidable. Therefore, every marriage entered into in this state is presumed to be valid unless expressly made void by Chapter 6 or unless expressly made voidable by Chapter 6 of the Texas Family Code and annulled as provided by that chapter.
In the case, De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014), aff’d, 791 F.3d 619 (5th Cir. 2015), under Texas law, the general rule is that a marriage valid where contracted is valid everywhere and that one void where contracted is void everywhere. The validity of the marriage is generally determined by the law of the place where it is celebrated.
In the case, Estate of Claveria v. Claveria, 615 S.W.2d 164 (Tex. 1981), once a common-law marriage exists, it, like any other marriage, may be terminated only by death or court decree. The spouses’ subsequent denials of a common-law marriage do not undo the marriage.
WHAT IF I AM MARRIED TO 2 DIFFERENT PERSONS?
This answer will not go into the bigamy offense. However, when two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes the most recent marriage until one who asserts the validity of a prior marriage proves the validity of the prior marriage.
To rebut the presumption of validity, a party must prove that a marriage is either void or voidable as provided by Texas Family Code chapter 6, Suit for Dissolution of Marriage. Typically, the ground alleged for rebutting the presumption of a valid marriage is that the petitioner is currently married to another person and that the earlier marriage has not been dissolved.
WHAT IF I WAS MARRIED IN ANOTHER COUNTRY?
This has been a common question that my office is asked especially with a lot of our clients having been officially married in other countries.
The law of this state applies to persons married elsewhere who are domiciled in this state.
This statute is considered an explicit directive as to “choice of law,” as recognized by Chief Justice Jefferson in his concurrence in the case, Citizens Insurance Co. v. Daccach, 217 S.W.3d 430, 464 (Tex. 2007). In the absence of such an explicit statutory directive, Restatement (Second) of Conflict of Laws section 6 sets forth the applicable factors in determining choice of law. Texas law presumes that every marriage is valid, including marriages performed outside the state.
WHAT IF I WAS UNDER 18 WHEN I GOT MARRIED?
Except as expressly provided by statute or by the constitution, a person, regardless of age, who has been married in accordance with the law of this state has the capacity and power of an adult, including the capacity to contract.
A person who is or has been married under Texas law is no longer a child. A married child does not lose his or her adult status if the marriage ends in divorce. However, an annulment of a child’s marriage does restore minority status because an annulment voids the marriage from its inception. A minor cannot enter into a common law marriage.
CAN I SUE FOR ALIENATION OF AFFECTION AS PART OF MY DIVORCE?
A right of action by one spouse against a third party for alienation of affection is not authorized in this state.
The Texas Supreme Court recognized the right to recover for alienation of affections in the case, Kelsey–Seybold Clinic v. Maclay, 466 S.W.2d 716 (Tex. 1971), but that cause of action has since been abolished by the legislature.
In the case, Helena Laboratories Corp. v. Snyder, 886 S.W.2d 767 (Tex. 1994) (per curiam), the court held that no independent cause of action exists for negligent interference with the familial relationship.
In the case, Stites v. Gillum, 872 S.W.2d 786 (Tex. App.—Fort Worth 1994, writ denied), a trial court did not abuse its discretion when it awarded sanctions against a wife’s attorney who filed a counterpetition in a divorce suit against a third party for interference with the familial relationship of the husband and wife because the Family Code of Texas specifically prohibits alienation of affections suits.

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