Dear Mr. Premack: My father got married several years after my
mother died. His new wife was still married to another man in Thailand
when she married dad. I suspect she (who now claims to be divorced from
husband #1) wants to grab dad’s money and assets. My parents had a rather
large estate that was partially placed in a trust for the children, but
the children do not have a copy of trust. Also, we are unable to access
dad (who has Parkinson's) due to his new wife being a heavily guarded gate
keeper. Dad at one time asked us to sign the trust over to him but when he
found out it was irrevocable he stopped. How do we get a copy of the
trust? – KSC
The most fundamental question is: what is the legal
status of his new “wife”? Texas law states that it is policy to preserve
and uphold each marriage against claims of invalidity unless a strong
reason exists for holding the marriage void. It goes on to state that when
two or more marriages of a person to different spouses are alleged – like
the situation with your father’s new wife - the most recent marriage is
presumed to be valid until the prior marriage is proven to be valid.
If you can find proof that she was married at the time that she married
your father, then two things happen. First, his marriage could be declared
void by a court with proper jurisdiction. Under the Texas Family Code, a
marriage is void if either party is married to someone else at that time,
and that prior marriage was not legally dissolved before the new marriage
Second, she could be charged with criminal bigamy. Under
the Texas Penal Code, it is a crime, while married, to marry another
person. Your father could also be in criminal trouble if he understood
that she was married to someone else yet consented to marry her (unless he
believed she was divorced already). This is a felony crime, so it should
be taken very seriously.
For either of those outcomes, you’ll
need solid legal evidence. If her first marriage had been in Texas, you
could obtain records from the county clerk. There would be a marriage
license establishing the date the marriage began, and there would be a
divorce decree establishing the date the marriage ended. Since she was
married (and maybe divorced) in Thailand, you may have a more difficult
time obtaining the equivalent records.
If you find proof and your
father wants to take action, he can file suit in the District Court to
have the marriage voided. Clearly that would end her reign as guard and
gatekeeper. If your father’s Parkinson’s causes him to be unable or
unwilling to take action then your only choice may be to file in the local
Probate Court to become his Guardian. To do so, you must allege and prove
that, due to his physical or mental condition, he is substantially unable
to provide food, clothing, or shelter for himself, to care for the his own
physical health, or to manage his own financial affairs.
not want you to become his Guardian. He may allege to the court that he is
fully capable (it is your burden to prove he has lost capacity). He may
allege that he has made other legal plans that take effect if he is
incapacitated (and thus does not need a Guardian). His “wife” certainly
won’t want you to become his Guardian. She might try to become his
Guardian herself (if they cannot get the whole proceeding dismissed). At
that point, you will have to allege that she is not qualified to be
Guardian due to the conflict over her marital status.
will then hear the evidence and try to make a determination that is in
your father’s best interests. If you are ultimately appointed to be his
Guardian, you can act on his behalf to void the marriage and to protect
your father from any fraud or exploitation this “wife” may be planning.
You will also be able to see his legal documents, including the
trust that you want to review.