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In Texas, a traditional, ceremonial marriage isn’t the only way a legally recognized union can be formed. The Lone Star State is one of a few places that recognize common law (informal) marriages. At Guest & Gray, our Dallas County divorce lawyers have observed that many people don’t fully understand how common law marriage works or how it affects the process of divorce. This blog post aims to shed light on these aspects.

What Defines a Marriage in Texas?

Firstly, it’s essential to understand what constitutes a common law marriage in Texas. Three key elements must be met:

Across the United States and much of the world, a child born to a married couple is assumed, by law, to be the child of the husband. Without any legal action or adjudication of parentage, the biological relationship between a husband and the child of his wife is not relevant to the husband’s parental rights over the child. Because not all marriages function monogamously, and the biological parentage of the children of married couples is not always known for certain, conflicts can arise over the parental rights to a child when a biological father is challenging the husband of the mother over the rights to the child. The Texas Court of Appeals recently rejected a biological father’s request to be adjudicated the father of his biological son, ruling that the petition was filed too late for the court to consider granting the relief requested.

The plaintiff in the recently decided case is a man who fathered a child with the wife of the defendant while the couple was separated. The couple did not divorce, and when the child was born, the defendant was assumed to be the father and was placed on the child’s birth certificate. According to the facts discussed in the complaint, the biological father suspected that he was the father of the child, and the child lived with him for part of the time during the first five years of her life. The plaintiff filed a parentage action shortly after the child’s fifth birthday seeking to obtain the parental rights for his biological child.

In response to the plaintiff’s suit, the defendant asked the court to dismiss the claims. The defendant argued that under Texas law, the biological father of a child born to a married woman must file a parentage action before the child’s fourth birthday to obtain an adjudication of parentage from the court. Because the petition was filed over five years after the child’s birth, the defendant alleged that the plaintiff had no grounds to seek parental rights over the child. The trial court rejected the defendant’s arguments and adopted the plaintiff’s position that the four-year statute of limitations period for establishing parental rights violated the U.S. Constitution, as parents have a fundamental right to parent their natural children that cannot be denied arbitrarily.

Figuring out child support can be an emotional and prolonged process, especially because an initial award may need to be adjusted. A recent case revisiting a child support order demonstrates some of the complications that can arise. In the case, a Texas father challenged the amount of child support a court had ordered him to pay. He also challenged the court’s order that he pay increased child support retroactively. Although the father was successful in his challenge to the retroactive support, the court upheld the monthly award amount, which the father will be required to pay moving forward.

In its opinion, the court first addressed the issue of the amount of child support to be paid. Texas law provides a set of guidelines to help the courts determine the appropriate amount of child support in any given case. The guidelines recommend a certain percentage of net monthly income based on the number of children a parent is obligated to support financially. For example, under the guidelines, a parent who is obligated to pay child support for three children will ordinarily be required to pay 30 percent of their net monthly income in child support. However, the law carves out a limit applicable to parents with significant resources.

When a parent’s monthly net resources exceed a certain amount as specified in the law, the percentage guidelines do not apply to the excess resources. The effect of this law is to set a presumptive upper limit on child support awards. But under Texas law, a judge can still choose to award additional child support based on each parent’s income and the children’s specific needs.

What is a Will?

We are all going to die someday, and that means we all need a will. But what is a will? A will defines what you want to happen after you die. In other words, a will is a legal way to declare your intentions upon death. We call it a will because it’s what you will, or desire to happen. It expresses your will or intent. 

 “A will is generally defined as an instrument by which a person makes a disposition of his property to take effect at his death, and which by its own nature is ambulatory and revocable during his lifetime.” In re Estate of Brown, 507 S.W.2d 801, 803.

Termination of Parental Rights

As a parent, you are the legal guardian of your child. Parental rights pertain to the custody of the child, i.e. (1) the legal right to make decisions for the child; and (2) physical custody to provide and care for the child. Usually, the decisions made by the parent are done with the best interest of the child in mind. However, when the parents of the child act in such a way, that it is in the best interest of the child to terminate parental rights, a court can and will terminate accordingly.


The coronavirus is impacting courts across Texas. Kaufman County Judges have issued the following orders to reduce the number of hearings and to help with the social distancing recommendation by the CDC.

These guidelines are effective from March 23, 2020, until further order of the Courts-

  1. If a Person is Sick- Everyone who is sick or who thinks they have been exposed to COVID-19 should contact (phone or email) the court to reschedule their hearings or trials. These individuals should not appear in court.

Parents can agree, or be ordered, to pay private school tuition as part of a custody or divorce case. Let’s say that you and your spouse agree that you will pay for your child’s private school tuition, you put that in the decree, then the bill comes, or you lose your job and can’t pay. What now?

This was the subject of a recent family law case in the Dallas Court of Appeals- IN THE INTEREST OF H.L.B. AND B.L.B., CHILDREN

In that case Mother and Father had two children. In 2015, as part of an agreed divorce decree Father agreed and was ordered to pay all private school tuition. In 2018 Father filed a petition to modify and asked that either Mother pay all the private school tuition, or the children start attending public school.

If you and your spouse are considering a divorce you may want to avoid costly litigation and mediate the case. Mediation is the process of asking a third party, a family law mediator, to help you settle the issues regarding property, custody, visitation, child support, etc.

Mediated Settlement Agreements Are Binding-

One reason to settle a case at mediation is that a Mediated Settlement Agreements, or an “MSA”, is almost impossible to change or challenge once signed. If you can reach an agreement and sign an MSA, you can know that those issues are behind you and move forward and enter a decree finalizing the case.  A valid MSA “is binding on the parties and requires the rendition of a divorce decree that adopts the parties’ agreement.” Milner v. Milner, 361 S.W.3d 615, 618 (Tex. 2012); see also Loya v. Loya, 526 S.W.3d 448, 451 (Tex. 2017).

In Texas, grandparents have a limited ability to seek court-ordered access and possession of their grandchildren. Grandparents who are considering filing a lawsuit to obtain possession and access need to understand the requirements, which are found in the family code.

Texas family code section 153.433-

This section allows a court to order reasonable possession of or access to a grandchild by a grandparent if:

Texas allows divorce and family law cases to bet set for a jury trial. Most clients don’t realize this is an option when they begin a family law case, but Texas does allow a jury to decide some issues in divorce and custody cases. If you are considering a jury trial you should talk to your lawyer about the advantages or disadvantages over a bench trial (having the judge decide the issues in your case.) Juries get to make binding decisions on some issues, but other issues are left to the judge to decide, even in a jury trial.

What issues can a jury decide in a Texas family law case?

  1. Grounds for divorce- If you plead for a fault divorce, a jury can decide if those grounds exist.
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