premarital cohabitationThe New Hampshire Supreme Court ruled that a court must consider time that a couple lives together prior to marriage as a factor in division of assets. The ruling, a landmark decision in New Hampshire, does not require a court to alter the division that the court seems fair in a divorce, but asks the trial judges to consider time that a couple, in this case a same-sex couple, lives together prior to getting married. In the case before the court, two women began living together in 1993 and were formally married in 2011 when same-sex marriage became legal in New Hampshire. One spouse filed for divorce, arguing that the marriage was a short-term one, but the relationship was a lengthy 21-year ordeal. This factor, the spouse argued, should be considered in reaching an equitable distribution. (New Hampshire has equitable distribution laws regarding marital property compared to Texas community property laws.) The Supreme Court stated that the New Hampshire law permits the court to consider “any other factor it deems relevant”, which in this circumstance should include the premarital cohabitation; however, the Supreme Court fell short of holding that the division or property or alimony awarded must change. The Supreme Court’s decision is not limited to same-sex couples, but any couple who had a lengthy premarital cohabitation.

Texas laws differ from New Hampshire in that we operate under a community property system. However, under the Texas standard, the court must make a division of property that the court deems “just and right”. Within that standard, the court can consider any number of factors to determine the appropriate division of the community property (property gathered together during the marriage). In this vague, nebulous standard could be the length of premarital cohabitation. Much as the New Hampshire Supreme Court points out, the vague standard allows for such consideration even if the consideration does not cause a change in the actual division of property.

 

Read: N.H. Supreme Court says divorce courts should consider premarital cohabitation

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.