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Roger
Roger, Attorney
Category: Legal
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Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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My husband and I have been married in texas for 33 years.

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My husband and I have been married in texas for 33 years. His mother is from LIthuania and my husband and children are all eligible for lithuania/EU citizenship through her. Unfortunately, they do not extend this to spouses. We were thinking of having his mom adopt me as adoption by a citizen automatically grants citizenship however we didn't realize the incest laws in texas were so strict that they included adopted children. we are not related by blood. would they really make our marriage null and void here if we did this as we were told by a tx attorney and if so, why?
Submitted: 1 year ago.
Category: Legal
Expert:  Roger replied 1 year ago.
Hi - my name is XXXXX XXXXX I'm a litigation attorney. Thanks for your question.

Under Texas law (and most other states), it is considered incest if the siblings are biologically related or adopted.

Here's the statute:

Tex. Penal Code § 25.02. Prohibited Sexual Conduct

(a) An individual commits an offense if he engages in sexual intercourse or deviate sexual intercourse with a person he knows to be, without regard to legitimacy:
(1) his ancestor or descendant by blood or adoption;
(2) his stepchild or stepparent, while the marriage creating that relationship exists;
(3) his parent's brother or sister of the whole or half blood;
(4) his brother or sister of the whole or half blood or by adoption; or
(5) the children of his brother or sister of the whole or half blood or by adoption.
(b) For purposes of this section:
(1) "Deviate sexual intercourse" means any contact between the genitals of one person and the mouth or anus of
another person with intent to arouse or gratify the sexual desire of any person.
(2) "Sexual intercourse" means any penetration of the female sex organ by the male sex organ.
(c) An offense under this section is a felony of the third degree.

Thus, if adoptive siblings were to marry, the marriage would be void and illegal. Thus, this is not possible to be done legally under Texas law.
Customer: replied 1 year ago.

Yes I know it says this, I found this out before I ever talked to you. however, I always thought the intent of the incest law was to prevent genetic abnormalities in children born of these unions and in the case of non blood adoptions, this does not apply. so what is the REAL reason for this law about adopted non blood relatives can't marry and it isn't the case in every state for example in west virginia it isn't the case. Texas apparently has one of the strictest laws in the country in this regard. In our case we did the marriage first and the adoption later would this make any difference? If we got married in a state that allowed this sort of thing like west virginia would this protect my right to stay on his medical insurance policy? I was told that if we did this I might not be able to stay on my husband's medical insurance and we might not be able to file a joint federal tax return.

Expert:  Roger replied 1 year ago.
I'm not aware of a specific reason why this is the law, but the law says it's illegal. However, it is likely related to family morals and the perception that siblings being married is wrong- - even if they're adopted.

The fact that you were married first would not likely make any difference - - IF the court would even allow an adoption. It's likely that a court would prohibit you from being adopted by your husband's family/mother, so you'd probably never get to the issue of incest.

It doesn't matter what state you are married in. Instead, all that matters is the state of your residence. If you were to move to a state where what you're looking to do is legal, that may be possible, but you'd likely have to stay there.
Customer: replied 1 year ago.

Here is another wrinkle. My mother in law lives in Florida while we are in Texas. I realize that Texas would not allow this to happen. However I spoke to an attorney in Florida where the laws are not as strict and she seemed to think it was possible there. Is there any way that we could do the adoption there and keep texas from finding out? Why does it matter where we reside if we did the adoption in florida and were married again in florida where we were legal. In an adult adoption do they reissue my birth certificate like they do in a child adoption ? So would they notify TX vital records where I was born and reissue a certificate saying I was born to my husband's mom in Florida where the adoption was done or just issue me a florida birth certificate? How does that work? Who would be listed as my father since her husband is deceased?

Expert:  Roger replied 1 year ago.
The adoption would have to be filed in the state of your residence. If you were to set up residence in Florida/move to Florida, then the petition for adoption could be filed there. Otherwise the case would have to be filed in Texas.

If you were to go through the adoption, a new birth certificate would be issued - - known as a birth certificate with a marginal notation. The "marginal notation" means that your original certificate and the information contained therein would not be changed, BUT the new information would be added to (instead of replacing the information) the birth certificate. Thus, it is likely that the adoption would eventually be discovered.

Also, the mother could adopt you alone - - without the father; having both parents would not be necessary.

Customer: replied 1 year ago.

hmm that's interesting the board certified adoption attorney in florida I spoke to seemed to think we could file it in Florida since my mother in law the petitioner resides there. Obviously if we had to file it in texas it probably would not be allowed, but if it was by some miracle allowed, it would definitely be discovered because wouldn't texas be the state that reissued the certificate? But if it was filed in Florida wouldn't Florida be the state that reissued the certificate? Do they talk to each other about this? I mean do they ask for my old information before they reissue the new certificate? I suppose if they issue a marginal certificate they must. Or maybe TX issues the marginal certificate. Do you know how this works? If Texas issues it then is it cross referenced with my marriage license and the authorities notified that my marriage is now illegal?

Expert:  Roger replied 1 year ago.
The case SHOULD be filed in the residence of the person being adopted - - NOT in the residence of the petitioner. This attorney may be operating under the assumption that NO ONE would object to the venue/jurisdiction, but the court could still take issue with the venue/jurisdiction since you're not a Florida resident.

The SAME state you were born in would be the state to re-issue your birth certificate. You would not get a new birth certificate from a new state because the adoption doesn't change when and where you were born - - so the same state you were actually born in would have to be the state that issues your new birth certificate.

Your ORIGINAL birth certificate would be changed - - except for the additions made via the marginal notations.
Customer: replied 1 year ago.

ok so there is obviously no way to keep this information from the state of texas. so if they do any cross referencing of their records in that department they could discover that I am now married to my brother...although he was born in Ohio and they don't have a copy of his birth certificate to see that we have the same mother. so it doesn't seem likely that they would discover this unless a national database of birth, death and marriage records comes into being in the near future. Although they might be suspicious that she has the same last name as my married name.

 

So I have an adopted son and his birth certificate doesn't have a marginal notation...it shows me and my husband as his parents as though he were born to us. Does this kind of marginal notation only occur with adult adoptions? Because this might be an issue with Lithuanian immigration if they think that this adoption was done only to skirt their laws. Also , do you know if the date of the adoption will show in this marginal notation as well?

Expert:  Roger replied 1 year ago.
Marginal notations are usually only done with adult adoptions. Thus, you likely would not find a marginal notation on a minor's birth certificate.

The DATE of the adoption doesn't generally appear on the new birth certificate.
Roger, Attorney
Category: Legal
Satisfied Customers: 27213
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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Roger
Roger
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