Houston Police Department Officer Accused of Bigamy
I had a hard time deciding if I was going to blog about this story on my criminal law blog or on this family law blog. Family law won out because I decided I wanted to discuss the laws as they relate to marriage and how long you have to wait after a divorce is finalized before you can get married again.
In this case, the HPD police SGT is accused of marrying wife#1 in August of 2010. Wife#1 filed a sworn affidavit with the 246 th District Court in Harris County, alleging that in May of 2011 the SGT left her for Wife#2. Wife#1 also alleges that the SGT moved in with Wife #2, and that at the time this affidavit was prepared (May 2011) the SGT was also married to the Wife#2. You can see the divorce petition here and the sworn affidavit here. I give these facts to aid in my discussion of how the Family Code deals with this situation. For the sake of discussion, I will also presume the SGT did in fact get married to Wife#2 before his divorce was finalized this month to Wife#1.
First, in Texas you can only be married to one person at a time. However, the Texas Family Code presumes that all marriages are valid marriages.
Sec. 1.101. EVERY MARRIAGE PRESUMED VALID. In order to promote the public health and welfare and to provide the necessary records, this code specifies detailed rules to be followed in establishing the marriage relationship. However, in order to provide stability for those entering into 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 and annulled as provided by that chapter.
Although we start off presuming that both marriages are valid, the Family Code quickly informs us that when we are dealing with two simultaneous marriages, we have to presume that only the second or most recent marriage is actually valid.
Sec. 1.102. MOST RECENT MARRIAGE PRESUMED VALID. 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…
So at this point Wife#1 would have no claim to spousal maintenance or a division of assets that were accumulated during the marriage, purely because of the Family Code presumptions. But this can’t be the law, right? If this were the law, you would see cases where a couple is married for 20 years and accumulates a large community estate, and in an effort to avoid splitting any of it with his wife a husband could run off an secretly get married to another woman and the Family Code would presume only his second marriage is valid. However, I cut off the last part of Section 1.102, the remainder of the section reads as follows:
…until one who asserts the validity of a prior marriage proves the validity of the prior marriage.
This piece of the code shifts the burden to Wife#1 to prove that her marriage to the SGT is valid. In this case, wife# 1 supplied a valid executed marriage license that showed she had been married by a proper church minister which was filed with the county clerk. This meets the requirements to show a valid marriage.
At this point Wife#1 is able to show her marriage is valid and is eligible to be granted a divorce. With the ability to be divorced also comes the ability for the Family Court to order post-divorce maintenance and to divide the community assets.
So what now happens to the marriage with Wife#2? Is it still a good marriage? If it is, when did it start? To answer this, we will have to turn to Chapter 6 of the Family Code to read about void marriages. The Code lists several reasons why a marriage may be declared void, they are as follows:
· CONSANGUINITY. A marriage is void if one party to the marriage is related to the other
· MARRIAGE DURING EXISTENCE OF PRIOR MARRIAGE
· SAME-SEX MARRIAGE OR CIVIL UNION
· MARRIAGE TO MINOR
· MARRIAGE TO STEPCHILD OR STEPPARENT
In this case, if Wife#2 had no idea that the SGT was still married to Wife#1, then she could have her marriage declared void.
Sec. 6.202. MARRIAGE DURING EXISTENCE OF PRIOR MARRIAGE. (a) A marriage is void if entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse.
(b) The later marriage that is void under this section becomes valid when the prior marriage is dissolved if, after the date of the dissolution, the parties have lived together as husband and wife and represented themselves to others as being married.
However, if Wife#2 is still residing with the SGT when his divorce to Wife#1 is finalized, and they hold themselves out to be married to other people, Wife#2 will be considered married to the SGT as of 30 days after the SGT’s divorce date.
As for the criminal aspect of this case, the possible crime is called bigamy and is detailed in the following Texas Penal Code Section:
Sec. 25.01. BIGAMY. (a) An individual commits an offense if:
(1) he is legally married and he:
(A) purports to marry or does marry a person other than his spouse in this state, or any other state or foreign country, under circumstances that would, but for the actor's prior marriage, constitute a marriage; or
(B) lives with a person other than his spouse in this state under the appearance of being married; or
(2) he knows that a married person other than his spouse is married and he:
(A) purports to marry or does marry that person in this state, or any other state or foreign country, under circumstances that would, but for the person's prior marriage, constitute a marriage; or
(B) lives with that person in this state under the appearance of being married.
(b) For purposes of this section, "under the appearance of being married" means holding out that the parties are married with cohabitation and an intent to be married by either party.
(c) It is a defense to prosecution under Subsection (a)(1) that the actor reasonably believed at the time of the commission of the offense that the actor and the person whom the actor married or purported to marry or with whom the actor lived under the appearance of being married were legally eligible to be married because the actor's prior marriage was void or had been dissolved by death, divorce, or annulment. For purposes of this subsection, an actor's belief is reasonable if the belief is substantiated by a certified copy of a death certificate or other signed document issued by a court.
(d) For the purposes of this section, the lawful wife or husband of the actor may testify both for or against the actor concerning proof of the original marriage.
(e) An offense under this section is a felony of the third degree, except that if at the time of the commission of the offense, the person whom the actor marries or purports to marry or with whom the actor lives under the appearance of being married is:
(1) 16 years of age or older, the offense is a felony of the second degree; or
(2) younger than 16 years of age, the offense is a felony of the first degree.
From reading the bigamy statute, you can see we clearly do not have enough information to really discuss this case as a bigamy case, since we do not know if the SGT is actually married to wife #2 or not, but if he is…it could be trouble.
Dennis
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