Marriage Law 101


Delise & Hall fields countless calls from divers and their “significant others” about domestic law. Here are but a few of the typical questions fielded time and time again followed by a general overview of the law. Issue One: What law applies?
Walking down the aisle to exchange vows with the love of one’s life is heady stuff. Institution of marriage brings with it significant changes is a person’s life.

In discussing these changes it is important to start at the beginning. When are you really married? Each state in the union establishes its own set of laws concerning domestic law. One state may have five grounds for divorce, another seven. Some states are community property states, some are not.

The first step in the process of understanding a person’s legal rights is to determine which state law controls. To accomplish this initial step one must determine the “legal domicile” of the couple. The “legal domicile” is customarily defined as the “permanent residence of the couple and the place where the couple returns or intends to return.” Simply said, it’s “home”.

Many commercial divers tend to live a transient existence until they are frmly established in their career. For example, assume Diver Dan and his lovely significant other Betty Sue first met in Muskogee, Oklahoma. They lived there together for three years in a home they purchased. Diver Dan then decided to go to dive school in Houston, Texas. Dan and Betty Sue shared an apartment while Dan attended dive school and later the couple moved to Morgan City, Louisiana where they rent an apartment while Dan works the Gulf of Mexico.

The couple returns to their home in Oklahoma during the winter months when work in the Gulf is slow. Betty Sue just can’t stand living in South Louisiana.

The first question to ask in determining which state law would govern this relationship is: where is Dan and Betty Sue’s domicile? There is a strong argument that the domicile is Oklahoma because that is where the “family home” is located, although an argument can also be made for Louisiana.

The second important issue in any domestic dispute is determining whether a couple is “legally married”. Defining marriage may be more complicated than one would imagine. In most jurisdictions marriage is defined as “the legally recognized union between a man and woman” and requires a marriage license and legal ceremony.

“Common law marriages” are recognized in fifteen states where the couple holds themselves out to be a married couple and act in a manner where the community would assume a husband-wife relationship. Those states recognizing such unions are: Alabama, Colorado, Georgia (if created before 1/1/97), Idaho (if created before 1/1/96), Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Ohio (if created before 10/10/91), Oklahoma (possibly only if created before 11/1/98 and with limitations), Pennsylvania (if created before 1/1/05), Rhode Island, South Carolina, Texas, Utah. A common law marriage has all of the legal benefits and responsibilities of a traditional marriage. In some states a divorce is necessary to end the relationship. Each of the fifteen states has its own specific mandates for the couple’s relationship to be recognized as a marriage. Texas, for instance, recognizes common law marriages but calls it an “informal marriage”. Under Texas law an informal marriage is established if the couple: 1.) agrees to be married, 2.) represents to the community that they are “married” (for instance refers to each other as “my husband or wife”, and 3.) cohabits – legal word for “living together – as husband and wife. In Texas the couple must also execute a declaration of informal marriage which be signed on a form prescribed by the Texas Bureau of Vital Statistics and provided by clerk of the county where the couple resides.


The next question often heard from Diver Dan and Betty Sue is: “we love each other and we think ourselves as married, what the heck difference does it matter whether the state or anyone else views us as “married”? A legally recognized marriage may have profound unanticipated consequences for a couple who believe they are a “married” couple.

For instance, under the Jones Act only individuals recognized under the Act as a “personal representative” of the deceased seaman can present a claim for damages. There is an exclusive order of preference, a pecking order so to speak, as to who can and who cannot bring the claim.

Under this order first in line is the “widow and surviving children”. Next in line are the parents, and last is a dependent next of kin. If Diver Dan dies offshore and the couple lived together in state which doesn’t recognize “common law or informal marriages”, only Diver Dan’s parents (or surviving dependent next of kin) can file the lawsuit, not Betty Sue.

Another example is if Diver Dan and Betty Sue decide to end their relationship. If the couple resides in a common law state which also recognizes community property regimes, when the couple splits up the community property must be divided ffty-ffty, unless there was a prenuptial contract. Lastly, it is important to closely review all insurance policies, especially life insurance policies. Oftentimes a beneficiary may be generally defined as the “spouse”. The determination of who qualifies as the “spouse” may be governed by where one lives.


In order to formally end a relationship defined as a marriage, the couple, or either of the spouses, must get a “Judgment of Divorce”. Once again, while each state has its own “grounds for divorce”, there exists commonality between states in just what constitutes legal reasons to end a marriage.

After identifying the recognized grounds for divorce the couple or individual seeking the divorce must institute legal proceedings to get the matter before the proper legal authority within each state. While there are specific procedures for each state the bottom line is that each spouse must be afforded due process in the proceeding. Under the due process mandates of the United States Constitution each party shall be given notice (usually through service of process or waiver of service of process) and an opportunity to be heard. Lastly, there must exist a formal hearing or method for the matter to “come before” the court or administrator overseeing the process. There are 50 procedures, one for each state, governing the method to finalize a divorce. Each procedure, however, must allow the opportunity for each to first of all know the process has commenced and second allow an opportunity for each side to be heard. Bottom line here, if someone is in the midst of getting sued for divorce, they should receive notice that paperwork is fled and have an opportunity to speak out should they wish to contest the effort to end the marriage.

Issue four: The Consequences of Divorce
There are three other matters which generate much angst, anxiety and turmoil when it comes to domestic disputes: child support, alimony and community property settlements. A parent can no longer get away with not supporting their child. Each state has specific guidelines under civil as well as criminal law which govern how much a parent is obligated to pay to help support the child, and the consequences for failing to live up to those obligations. Some states restrict a person from securing privileges such as obtaining a driver, hunting/fishing or professional license if the parent is behind on support payments.

Ignoring a notice of a child support hearing or defying a court order may have significant consequences, such as revocation of licenses or time in jail.

With the onset of the equal rights came the end of blanket alimony. Alimony, also known as spousal support or maintenance, is allowed on a state-by-state basis. There are customarily two types of alimony, “temporary and permanent support”. The award of alimony is customarily ordered when it shown that a spouse is “in necessitous circumstances”. Such a condition arises when the spouse cannot provide their self with a life style they have become accustomed. The spouse asking for support must also be “free from fault” (not guilty for the grounds of divorce – such as adultery). The alimony is due while the divorce is pending and may become permanent if the continuing “need” exists. Permanent alimony often ends when the spouse receiving it remarries, dies or cohabits (“lives with) another person.

Property issues are complicated from the legal, as well as accounting perspective. In those states which recognize community property any property acquired through the labor of either spouse (earnings, bonuses, proft-sharing plans, to name just a few sources) during a marriage is divided equally (50-50) between the partners. States recognizing community property are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.

Each state has different rules concerning the formation and dissolution of property and it is imperative to find out about the specifics of each state and follow the mandates closely.