What If You Were Never Legally Married?

What happens if a San Diego a marriage turns out to be invalid? This can happen in a variety of ways. For instance, one spouse may be legally married at the time of the current marriage was entered into. This can be the result of deception on the part of the already married spouse, a mistake during the prior divorce proceedings, or a misunderstanding regarding the requirements of divorce laws. The “innocent spouse” is not legally married but may have rights as a putative spouse.

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A putative spouse is not lawfully married, but has a good faith belief based on objectively reasonable grounds that he or she is married. It is important to note that the determination of “good faith belief” is evaluated using subjective criteria. Therefore, the spouse must sincerely believe that he or she is married. Further, this belief cannot be based on assumptions or facts that an ordinary person would consider unreasonable. Thus, the standard as a whole is a hybrid: the belief of a valid marriage itself is evaluated using the putative spouse’s subjective belief; however, the reasonableness of that belief is evaluated objectively.

However, once he or she learns that her marriage is invalid, she no longer accrues putative spouse property rights. The rights of putative spouses also extend to putative domestic partners. Under California law, two parties may register as domestic partners only if they are (1) a same-sex couple or (2) elderly opposite-sex couple receiving Social Security benefits.

If a putative spouse is not legally married, then what are the benefits? Putative spouses do not have the same rights and obligations as lawfully married spouses under the California Family Code. However, there is an exception specifically regarding property rights. A putative spouse may be entitled to similar property, spousal support, and attorney fee awards as a lawful spouse. Property that would normally be characterized as community property or quasi-community property in a valid marriage is deemed “quasi-marital property.” In a proceeding to dissolve the putative marriage, the property discussed above is divided as if it were community property. Community property is generally divided equally between the parties.

If the spouse does not have a good faith belief based on objectively reasonable grounds that he or she is married, the parties may be classified as unmarried cohabitants. Unmarried cohabitants are persons who reside together but who are neither lawful spouses nor putative spouses. Therefore, unmarried cohabitants are not entitled to property rights automatically. Instead, contract principles are applied to agreements between unmarried cohabitants. Contracts between unmarried cohabitants will be upheld so long as the consideration given does not violate public policy. When a contract is based solely on the exchange of sexual services, it violates public policy.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.