There is a myth out there that if a couple lives together for 10 years, they are considered husband and wife under Texas law.  While it is possible that this hypothetical couple could be considered a married couple in the state of Texas, the length of time that they lived together is not the basis of the marriage.

Under Texas law, a couple is informally married, more often referred to as common law marriage, if they meet three requirements.  These requirements are as follows: 1) the man and woman agreed to be married, 2) after the agreement, the couple resided together in this state as husband and wife, and 3) they represented to others that they were married.  Tex. Fam. Code §2.401.

But what does this mean?  Does the agreement have to be in writing?  How long does the couple have to live together?  What does it mean to represent oneself as a married couple?  These are all questions that commonly arise when confronted with the issue of whether or not a couple is married under the eyes of the law.

Case law tells us that an agreement does not have to be in writing.  In fact, the couple does not even have to state to each other that they are entering into an agreement; they simply have to live as if they were in agreement.  In regards to the length of time necessary for residing together, the court has said that one night may be enough to prove that the couple is married.  This is a very extreme circumstance, but nonetheless, it is possible to be married after only one night of residing together. Lastly, the representation to others does not need to occur on a daily basis.  Establishing representation may be as simple as establishing a joint bank account, filing a tax return together, or introducing your significant other as a spouse at a party; the couple does not need to constantly tell others that they are married.

I hope that this information puts an end to the 10-year myth, but it should in no way be considered the end all to the determination of whether or not a couple is married.  My examples above are extreme.  If you have a question about common law marriage, please see legal counsel.

photo credit, Jacob Enos

As I sit here and write  I am riding in a car with an old college girlfriend, reflecting on the weekend I just had.  We are on our way back from Houston, where we had a brief visit to celebrate the recent marriage of a mutual girlfriend from college.  The party was nice; it was good to see old friends, and our alma mater won its football game Saturday night, so to say the least it was a good trip.  It’s times like this that always make me feel nostalgic for the “good old days.”

But this feeling of nostalgia is not what I really want to talk about.  What I do want to discuss is one particular topic that the three of us girls discussed this weekend – premarital agreements.  Most people have heard of a “pre-nup” but they really do not understand the truth behind the process and the document.  I’ll always venture to say that less than half of the people that have heard of a pre-nup have ever heard of a “post-nup.”  Both premarital and postmarital agreements are tools that couples use to clarify the details of a marriage.  Both “tools”, as I like to refer to them, are often scrutinized and put in a bad light, but are these tools really bad?

For instance, when two people enter into a business relationship, they sign contracts, don’t they?  Or at least, shouldn’t they?  In essence, isn’t a marriage relationship a business relationship?  Two people contributing time and money for a common purpose, with the ultimate goal of a successful venture.   So why is it then that so many people still consider it an insult for one partner in the relationship to ask the other to enter into a pre- or post-marital agreement?

I understand that a marriage has a key element that most businesses do not, that element being love, but perhaps our society places too much weight on the power of love?  Maybe if we viewed marriage more like a business relationship and relied less on love, we wouldn’t have as many divorces.  Think about how hard people work at preventing their business from failing.  Shouldn’t we put just as much effort into our marriages?

As a single female, I don’t hold the answers to these questions.  Nor do I feel that I am fully qualified to give an answer, since I have not yet been in a marriage myself. But what I do know, is that our country’s divorce rate lingers around the 50 percent mark.   With one out of every two marriages ending in divorce, perhaps we need to reexamine our present notions of the marriage relationship.

Photo credit, Corey Leopold

One of the greatest joys, thus far, in my legal career, has been the ability to create families.  My firm’s partnership with a local surrogacy agency provides me with this opportunity on a regular basis.

I am sure that many of you are familiar with the concept behind a gestational agreement, whether through a peculiar story you heard on the news or the recent articles in the San Antonio Express newspaper, but you may be unaware of the terms, process and technicalities.  Don’t let the technical words and long paperwork scare you; the legal process can actually be quite easy and stress-free.   I will hopefully clear up all your misconceptions today.

The first step to understanding the gestational procedure is to know and trust that Texas is a gestational friendly state. The laws are in place to aide parents in their pursuit to create a family, not to hinder it.  Thus far, I have been able to help not only couples here in Texas, but couples from other countries, such as Mexico and Honduras. The laws are simply in place to protect both the intended parents and the gestational parents.

But now you may be asking yourself, who exactly are these “parents”?  The intended parents are the mother and father who have initiated the gestational process.  They are the parents who intend to love and care for the child, or in some cases, children, after he/she is born.  The gestational parents are the woman carrying the child for the intended parents and her husband, if that term applies.  A gestational mother does not need to be married to participate in the gestational process.

I am often asked why I use the term “gestational” rather than “surrogate” and the answer is quite easy.  A surrogate is a woman who carries the child for another.   By traditional standards, a surrogate does not have any limitations on her relationship with the child.  In other words, a surrogate could share genetic material with the child she is carrying.  A gestational mother cannot have any genetic relationship with the child; a gestational mother is simply there to provide a womb for the development of the child.  Texas only allows gestational agreements with gestational parents.  You cannot have a traditional surrogate mother in Texas.

Why? You may be asking, and again the answer is quite simple.  Establishing clear boundaries and keeping a clear trail of genetic connection, prohibits a gestational mother from coming back later and trying to exert her rights to the child after birth.  In Texas, a gestational mother has no rights to the child she is carrying.  Texas laws keep the roles of each participant to the gestational process clearly defined.

Gestational agreements and the gestational procedure is a fascinating and wonderful way to bring a child into this world.  I thoroughly enjoy working with each of these families and assisting them as they take the first step into one of the most important roles they will ever play.

Photo credit, MeagenJean