Monday, March 13, 2006

the putative marriage

I had intended to begin my discussion of the divorce at this point, but stumbled across another issue that I will touch on briefly.

Getting Married

The “Putative” Marriage in Texas

In all my years of dealing with marriages (or the breaking them up) I do not believe I have ever run across a putative marriage. So we, you and I, are learning something new today. Isn’t this fun!

Putative Marriage

The putative marriage does not exist in the Family Code, only in case law. Basically a putative marriage is created when to people (man and woman) believe that they are married, but are not because of some impediment to their marriage, i.e. one party is still married to someone else. This scenario creates a void marriage pursuant to §6.202 of the Family Code. Parties in a putative marriage have two choices:

  1. File suit to declare their marriage void and end it all, or

  2. Clear up the impediment to their marriage by getting a divorce in the prior marriage or otherwise fixing the problem that caused the putative marriage in the first place.

If the second choice is taken, and the prior marriage dissolved, the later marriage now becomes a valid marriage. If the first choice is taken, the courts have held that the putative spouse can hold the same property rights and rights to children as in a normal divorce.

This is a very simple explanation of a somewhat complex theory, but I think the idea is pretty clear.


The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. No recipients of content from this blog, client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. I expressly disclaim all liability in respect to actions taken or not taken based on any or all the content of this blog. Talk to a lawyer first, preferably me!

44 comments:

Anonymous said...

Chris, your information about putative marriage is by far the best found on the web. My wife and I married in Hawaii in April with the belief that my divorce was final. However, we have learned that the entry of judgement in the divorce was actually AFTER our wedding. We live in California and can't find any information. Do you know if our problem is automatically fixed since the divorce is actually final now? Are we legally married?

Chris Schmiedeke said...

I cannot answer that question because I do not practice in California. I did look at the statutes in California and could not find anything in the statutes addressing this issue. However, that is not unlike Texas where the putative marriage law is mostly determined through case law.

I would be suprised if California was much different than Texas law.

My advise is to contact a local California attorney, pay them a couple hundred dollars for a brief consulatation and get a definitive answer. Sorry I could not be of much help.

Stupid said...

Chris is the best attorney out there, anonymous.

California laws used to be so different..oh my how that is changing.

My very unqualified legal advice is to try to marry someone else and see if anyone says anything.

Chris Schmiedeke said...

Anonymous, you can see why they tagged their name as "stupid" because you get a stupid answer.

I would not roll the dice or you could end up in a situation where a long and happy marriage (2nd) is destroyed because you did not take the time to fix the first one (or at least confirm that it did not exist).

Anonymous said...

I live in Ca and just today went to see a lawyer because it looks like I have a putative marriage. We found out in Jan that my husband was not devoriced from his first wife. (they did file)And he thought they were.
We have been married 18 years and I cannot collect Social Security unless we get Pron non tonc. Go and see a lawyer and spend a few dollars for your own piece of mind.

Stacie said...

i was with my husband for five years until i found out that he was still married to his first wife...we then separated and have been separated for a year and a half now...he is already married again to another woman...i believe our marriage is void because he never divorced his first wife....i just don't know how to go about filing suit....can anyone help me???

Anonymous said...

im in CA and just found out that Im a putative spouse and i cannot find any attorney.The divorce papers were filed 17 years ago but were some how not finalized. we have been married for 5 years. this is devastating news and my husband is very ill. What is nunc pro tunc and is that the only solution?

Chris Schmiedeke said...

A nunc pro tunc is used only to fix typographical errors or other similar problems. It is not used to fix substantive problems. At least not here in Texas.

From the brief information I have, it sounds as if your husband needs to get the original divorce finalized. However, that is under Texas law. You did not give any indication that this is a Texas case. If it is not, you are going to have to find a lawyer in whatever state was handling the original divorce, or wherever residency is, to see if the laws are the same.

I would suggest you contact an attorney to get that taken care of. You may be able to get it done in the county in which you live. I would definitely check and find out.

Good luck.

Anonymous said...

chris-you are smart and im not stupid! I need to know about widows benefits for social security if you are a putative spouse. your response to my putative spouse question was helpful. ive contacted nearly 20 attorneys and most seemed scared of or lacking knowledge of a solution to my problem. Im in CA and have lived with my husband for 12 years, we have been married for 5. We thought he had been divorced from another woman for 20,but in fact the divorce was never finalized. My husband is very ill and I am relying on his social security for the future as I have been a stay at home Mom for 12 years and have no social security credits of my own. There are no children with his 1st wife. Could his x(or whatever)wife get his social security? What does the law say?
bewildered with no help in sight

Anonymous said...

still bewildered. What is laches? Now this x(or whatever)wife wants some alimony. My husband has been separated and completely alienated (and truly believed he was divorced from) this person for 20 years. They were together and married for 7 years prior to the separation. I DONT like being a putative spouse!

Chris Schmiedeke said...

Anonymous 1, I do not think you are stupid. If you are the one who posted as "stupid", then I was jsust continuing that thought in a humerous way.

As for your question, I do not know the answer and hesitate to offer an opinion. However, I stand by my earlier statement that I think the best answer (if you were in Texas) woould be for your husband to get a divorce. Once that was done, your issue would be solved as you would then be married.

So the questions is, what is the law in California with regard to this issue? I do not know the answer to that. Have you simply asked a lawyer to get your husband divorced? Certainly there is a lawyer that can get your husband divorced. If you can get that accomplished, then either you need to remarry him, or your current marriage will be validated through some similar law (or case law) similar to Texas.

Again, these are issues for a California lawyer, but just break it down into steps.

Good luck.

Chris Schmiedeke said...

Anonymous 2, you need to get a lawyer wherever you are. They can answer all your questions and can probably remove that brand on your back that says PS!

Good luck!

Anonymous said...

i was married for only a short time7years seperated4 about month and a half concieved a child lived like husband and wife4 25yrs.now im being told that i have to take this man 2 court 2 recieve any kind of property. i live in mich. please help me

Anonymous said...

WOW...never expected to be in this siutation but I guess I have a putative marriage. Please clarify my situation as such. I need to know if I need an annulment and remarry him after his divorce.

My husband is an American who lived in Norway, married for 5 years to a local, but separated in May 05, and signed what he thought were divorce papers in May 06.

He met me later and proposed in May 07. We both believed that we were both divorced and could marry in Las Vegas in July 07. We found out in Oct. 07 that the divorce had not been finalized, and that in will not be final until Nov. 08 in Norwegian courts.

They never lived or worked in the USA together. I am an American. I have changed my name, social security, taxes, everything to my married status. We were married in Nevada, currently live in Texas.

Now what? Once his divorce is final, our marriage in now legal in all 50 states? And would the date of our marriage be changed to that day or the one we were married on? If we move elsewhere, will our marriage still be legal after his divorce? AND would anywhere in the US even know our predicament since they lived in Norway and never filed taxes in US during that time?

Thanks!!!

Chris Schmiedeke said...

Anonymous, it sounds as if you have the right answer. Assuming you are talking about Texas (I don't know about the other 49 states) as long as you remain married, and clear up the impediment, Texas will recognize your marriage.

Since you have cleared up the impediment, you will have ratified your marriage from the date you got married. The statute does not require you to have another ceremony or in any way remarry. The original is in full force and effect.

I assume that the other 49 states would recognize a valid Texas marriage as would most countries. You have to realize that you will be married as if there never was an impediment.

Hope that answers your questions.

Anonymous said...

Chris, thanks for answering such complicated questions. We were married in Nevada, our legal residence at the time. We now live in Texas. So as long as we live in Texas, it's recognized but if we move elsewhere then...? We live in Texas now, but what if we move to another state after everything is straightened out?

And honestly, how would anyone/govt agency know anyway since he was married abroad and never lived in the USA during that time?

Chris Schmiedeke said...

Anonymous, you are overthinking this. For a moment forget the putative spouse thing. You got married in Nevada. Do the other states recognize that marriage? Yes, of course they do.

There is no difference in that and what you are experiencing now? Why? Because when the impedent is removed and you continue to be married, you have "finalized" the Nevada marriage. Texas recognizes that Nevada marriage...which makes you legally married.

As far as who in the government would know...it is not the government you are worried about...it is the possibility of divorce and what your spouse knows and what effect that has on your property rights.

Anonymous said...

HAHAHA! Chris, you sound like my husband...and everyone else I know, about overthinking! So thanks again...you have relieved all of my concerns.

Anonymous said...

Chris,
I have a question that has nothing to do with putative marriage, so if you want to ignore it, I undestand but hope you do not. My husband wants to buy a house I do not agree to, can only one spouse legally buy property in Texas? And if so, is the non-consenting spouse responsible (liability) for that property? thanks...

Anonymous said...

I was divorced in 1997, in California by bifurcation after the 6 month waiting period. My attorney told me it was okay to remarry (as I was pregnant) because I was divorced with remaining issues reserved for a later date. I did just that and months later came to find that the paperwork had not been filed properly and I in fact was still married to my ex-husband. In 2001 my husband and I went to court and the judge granted my prior divorce judgement as nunc pro tunc to the day before my remarriage, making it legal (especially since we had a child). My second husband and I divorced (divorced finalized a year ago in WA state). He has filed an appeal and is now saying that the nunc pro tunc was wrongly applied in making our marriage legal, therefore we do not have a valid marriage. My ex-husband was there for the nunc pro tunc ruling in 2001 so he knew all about it. Should I be worried?

Chris Schmiedeke said...

Anonymous, it is impossible for me to answer your question because you are asking me to analyze laws from two states in which I do not practice.

I think that you should contact a lawyer in California to determine whether what the judge did in 2001 was valid. If it was, then you need to determine, under the law of the state that you were then living, whether that ratified your then marriage.

Those are questions for a lawyer of those specific states.

Good luck.

Chris Schmiedeke said...

Previous anonymous, as to whether your husband can buy a house without your consent? I don't know the answer to that question off the top of my head...check with a title company or real estate office, they may know.

I do know that any property he purchases will be considered community property unless proven otherwise and that it will be a community debt unless proven otherwise.

Basically, it belongs to the marriage.

Good luck.

confused military wife (or at least i thought so) said...

Chris,
Thanks for having this message board- I am having the HARDEST time finding any info on putative marriage. But I guess I'm not the only 1 this has happened to :0/ I just found out that my ex never filed the uncontested divorce papers that we signed with a notary over 7 years ago (we were married for less than a year in CA). I got remarried (in NV) 3 years ago believing that the divorce had been filed & I now have a child with my current spouse. I intend to file the long overdue divorce as soon as I can locate my ex to clear up the impedent to my current marriage. My concern is that there is a 6 month wait for the divorce to be final in CA, during that time I am not legally married to my current spouse as the marriage has not been "finalized"- did I understand that correctly? My spouse is a service member & has orders to relocate, if we are not legally married then our family will have to split up during the wait period for the divoce to finish. Is there any way to make it legal in the interium? It was suggested to me by a friend from TX that we go there & get married again because TX would recognize our most recent marriage as valid which might prevent us from being split up by the military. I don't know what to do but I need this cleared up FAST. Any info would help. THANKS

Chris Schmiedeke said...

Confused, that is a really good question, and one which I do not know the answer to. The problem is that you have so many jurisdictions involved.

I don't know why Texas was picked out as they have the same rules generally that you laid out in your post. The putative marriage thing validates your marriage (in Texas) when the impediment is removed (the prior marriage). You would have to be divorced.

My question is, how would the military know you are not married? You have obviously been acting married up to this point and I assume it was not a problem, so why is it now? Just go along as you were, get the divorce done, problem solved.

Sorry I could not be of more assistance.

Good luck.

Anonymous said...

Ok. I amy sound dumb after reading all the comments. I have a case I need advise on. My Husband#2 filed a motion for summary judgement to void or null the divorce I filed in early 2007 which was finalized in spring 2007.Oh! so you know my X husband basically abandoned me and my child which he is not the father to and never really provided family support during the "suppose marriage", which he was recieving extra pay for during that period. He is now being asked to pay the military back for the period, the divorce i previously filed for. He is stating since he is in the military that he was not properly notified, which i did not know his address/location. I filed with publication on court house door. Well he withdrew that motion and then filed a motion for new trial, he was granted the new trial motion and we are now scheduled for trial early next year. During summer 2007 I met and got married to my husband who is also in the military. This is why we are concerned. We had a child this august 2008. It concerns me because i live with him overseas. Once the divorce is finalized once more with the previous marriage, is my current marriage still in tact? Under Texas law are we still considered married? if yes, is it from the date we origanlly got married? or do we have to get married again? I am extremely concerened because this determines our family staying together.

Chris Schmiedeke said...

Anonymous, your post is really hard to follow so I will try and answer in general terms.

In Texas, if a person is still married when they get married again because of some accident or whatever, then they can affirm the second marriage when they dissolve the first marriage as long as you are still cohabitating, etc...

I think all these answers are in my post. I do not know the answer as to when it dates back to without pulling out case law. It seems to be that if the original marriage is ratified, then it dates back to that time, but again, I am not sure about that.

Hire a lawyer and I bet they can find out!

Anonymous said...

Hey Chris, I have been reading these posts and am still in a legal conundrum with the issue of "putative marriage". I had a tahitian wedding (not legal in Tahiti) 12 years ago and never made it legal in Calif., and now we are involved in what looks like in a putative marriage case. We verbally and with civility spoke of how we would divide assets reasonably, but now after I was served with papers, she is asking for 38k a month to support her lifestyle. I have consulted an attorney on the matter, but he didn't give me much confidence that it would turn out well--he himself has only seen a couple of these cases in his career! Can you recommend a good Atty in Calif. with experience on this issue. Could you please give case law e.g.'s to this subject. I have looked through Family law code in CA and it seems to be quite sparse on this issue. Also, there are no impediments or kids in the mix--only assets which are in my name. Thanks for your advice and appreciate your response in advance.

Oxymoronical said...

I don't know if you are still following this blog entry, but I have a twist.

My wife and I filed an informal marriage form in Texas (1992) saying we had been living together as man and wife since June 1991.

We wanted a divorce last year and I went to Nevada to be near family.

While researching the divorce I discovered that she actually filed for divorce Sept. 1991 and that decree was "signed" on March 1992 and there are further court entries until October 1992.

I knew she had been married to a man that abandoned her, but I had no idea that she was married while we were living together as man and wife.

Is our marriage valid because she finalized the first marriage, even though I never knew her divorce had not been finalized?

Everything took place in Texas. Thank you.

Chris Schmiedeke said...

Oxymoronical, it is impossible to know the correct answer without knowing all the facts, but the facts you lay out do not sound much different than a typical putative marriage except that you did not know about the marriage and subsequent divorce.

I cannot see how a persons lack of knowledge would change the result as the statute does not mention anything about all parties being informed. However, it could raise other issues such as fraud etc...

Sorry, that is about the best I can do with this one. If you are divorcing, retain an attorney and run it by them.

Good luck.

Anonymous said...

I have a question. I previously posted a question. I married my current husband(A) in Aug 2007. I had a the divorce with my previous X-husband(B) finalized in April 2007. I live in Texas. X-Husband(B) took the original divorce I filed to court and got away with changing the divorce date to January 2009. Is my marriage with husband(A) valid? If it is, do I need to get documentation to show that it is still valid? IF yes, how do I get this documentation? Would my marriage date to husband(A) change to January 2009 when the new divorce decree was signed? I am very stressed about this. Thank you for your help.

BOB said...

I have a quick question for my friend. He was married and signed divorce papers in 2005, came to Texas and remarried in July 2007, but came to find out last month that the other divorce was never finalized.

The divorce is now finalized as of March 16, 2009, but he wants to divorce his current wife (the one he married in 2007)who he has been living with as husband and wife ever since. It seems their marriage was void until March 16, 2009 when the impediment was removed.

The question is he wants to file for divorce, does he only have to split his community property up on assets obtained since March 16, 2009? Can she claim to be a putative spouse and what rights would that give her?

Chris Schmiedeke said...

Bob, most likely it will date back to the time they were married. Once the impediment was removed and they continued to live together, that ratified the marriage, all the way back, not just from March.

I suggest your "friend" retain a lawyer, explain the situation and get their opinion. They may have a different opinion than I do, as may a judge.

Good luck.

Chris Schmiedeke said...

Anonymous, read my post. Your answer is right there. Once the impediment to the current marriage was removed (by the prior divorce being finalized) your current marriage was ratified. The answers are right in the post.

All you have to do is to continue to breathe and you will remain married. Nothing else required.

Good luck.

Cherry said...

Someone is common law married, but no legal documents were obtained. But it does absolutlely meet the frounds for common law marraige. The family of the deceased is refusing to acknowledge the marriage. What can the lving spouse do to protect herself and what is the procedure to make the common law marraige legal

Kelly said...

Dear Chris,

My sister lives in Texas, and I realize now, is a putative spouse. Her first marriage was never legally ended, even though her first husband has married twice more, before my sister married her second husband. They both knew that this was the case going in, and were married for 8 years. Both believed they were legally married.

Now that they are getting a divorce, my sister's attorney seems to think she has lost all of her rights to the property they aquired together while married, because she was never divorced from her first husband. She cannot even find her first husband, and has not spoken to him in 20+ years.

Do you think you can help her?

Chris Schmiedeke said...

Kelly, I can help her if her case is in the Dallas, Collin County area, otherwise she will need an attorney in her area.

Let me know if I can help.

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Anonymous said...

Dear Chris--I was remarried in Texas before my divorce was final in Califonia...I appear in front of the judge he said you are now divorce and that i would get a copy of the proceeding and judgement in the mail.Two weeks later I get the proceeding with a date on it(Feb)stating that as of this date marriage is terminated,not paying any mind to the rest of it,that read or until final judgement is recieve.While in Texas visiting thinking I am Divorce I get remarried (april),five months later in (sept)i get the letter of entry of final judgement.I never did anythig to fix this cause I didn't know what to do-I did call the court clerk,but she was no help all she could say is you have to wait 6 months in the state of california to wed...6 months from what.
My question is I reside in Texas now and still with husband #2 did this marriage become valid once the other marriage was Finalized.It has since been 20 years and we live all these years as husband and wife but i would really like to make this right but I still don't know what to do or go by fixing this ,do we have to get married again is it considered common law.I don't have the funds to hire a lawyer.Any help would really be apppreciated.

Anonymous said...

Dear Chris,
I would like some advice. I am in a common law marriage which is coming to a sad end. We lived together for 5 years, have social memberships together, have both announced ourselves as husband and wife always, had every intention of getting married, etc. Never filed taxes together though. The house is under his name, as is my car, I have utility bills under my name. I have two kids from a previous relationship. He is being a complete jerk and is telling me to move out of "his" house.I wanted to leave amicably however he is being a complete jerk. He has been supporting me and my 2 kids for the past 5 years, my kids call him dad. Can he continue to support me, like spousal support? just til I get on my feet legally? what about the house? He wants to control what I do and do not take with me because "he" paid for it. I have not worked in 3 years. I have been attending school to graduate in 16 days as a registered nurse. I have not established a place to go, have not secured an RN position, and have little money. Can he legally kick me and my 2 kids out just like that? (sighs) your advice is greatly appreciated.

eve said...

Dear Chris
I remarried in Texas April of 89 before my divorce was final in California.I went to court Feb,89 judge said divorce judgement was granted and I would get the final judgement in the mail.I took it as I was free to remarry come to find out california has a 6 month waitting period,until this day I still do not know when the waitting period began or ended.As soon I recieve the final judgement which was Sept 89... I called the courthouse in california all the clerk said to me is my second married was voided,so then I called Texas courthouse and they said my second marriage became valid once final judgement was recieved...I live in Texas now have been with my second husband for 25 years.....Is my marriage valid and if so.. how would I go by getting the dates change to my marriage license to reflect the date of my divorce final decree....I read on one of your post of Pron non tunc,can I do this on my own I can not afford an attorney.And will I get in trouble for this.Up until now I have never been ask for marriage or divorce record and I don't want to run into complication with benifits and whatnot..Any imfomation would be appreciated...

Anonymous said...

Hello Chris
I remarried in Texas April 89,before my divorce was final in California.I did one of those do it urself divorce...anyway did everthing as instructed recieved a court date Feb 89, went to court and judge said divorce was granted and I would get final decree in the mail...Little did I know california had a 6 month waitting period,till this day do not know when the waitting period began but anyway got the final decree in Sept 89.As soon I recieved it I called the court house all the clerk could tell me is that my second marriage was void....so I proceed to call the court house in Texas,that clerk told me that my marriage became valid the the date the first marriage was finalized...I now been living in Texas for the last 25 years and still with my second husband,I had never been ask for marriage or divorce record until now..my question is am my marriage really valid or do we have to get married again and i read on a previous blog about pron non tunc to get marriage license dated to the date that divorce was finalize,how would i go by doing that...I can not afford a lawyer..It's been a long time now I just want to make thing right..Any infomation would be appreciate.....

Anonymous said...

My son was married in Texas.First by a judge in Sept. 1992. Then, a religous ceremony in Feb. 1993. Same girl. When divorcing in 2004 they listed the marriage date as Feb. 1993. Does this affect the legality of the divorce?