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Found out marriage may not be legal

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paroberts

Junior Member
What is the name of your state (only U.S. law)? South Carolina

I have a friend who recently found out her marriage may not be legal. Her and her husband married 11 years ago in Virginia and they have 3 kids. At their wedding the minister gave them their wedding certificate. She used that certificate to obtain a driver's license in Virginia and change her name with no problem. They have owned houses together and have always filed taxes as married, plus she is currently on his health insurance as his wife.

About 1 1/2 years ago they moved to South Carolina where they now live. When they finally sold their house in Virginia 7 months ago she went to the DMV in SC to get a new driver's license. She was told that she needed a copy of her marriage LICENSE....not cerificate. When she contacted the county in VA to obtain her license she found out that there is no record of it on file. At first it wasn't a big deal, but now 7 months later her husband says they are not married and he's leaving. He's convinced her that they don't need a divorce or to go to court. That he doesn't owe her anything as far as alimony or child support.

The questions she have are

1. Is she legally married and do they need a divorce? She knows SC is a common law state but they were married in Virginia.

2. If she isn't married, could she be in trouble for fraud for filing taxes as a married couple all these years? Also they haven't done their taxes yet this year so should she file married or single. She is trying to go back to school and if she files single it would help with her financial aid, but if she is married she doesn't want to do something wrong.

3. Also if they are not legally married, does that mean that technically she is the legal guardian of the kids? She doesn't want to keep the kids away from him at all, but because of financial issues she may have to move back to Virginia to live with her mom until she gets back on her feet. He has told her she isn't allowed.

4. Can he just decide to take her off his insurance?

Any insights or suggestions would be appreciated.
 


Samswife

Junior Member
They are married.

Did your friend and her husband ever actually go to the clerks office to file for a license? they needed that for the pastor to be able to file for a certificate. If the state doesnt have anything on file then they probably aren't married. She should try to find a way to get to the town they were "married" in and show them what she has and have them explain what might have happened....

as far as the other issues, if they are not actually married then yes he can just leave but until custody is established since they both are on the birth certificates and both of them have been living together I would say both are guardians. He can't keep her in the state without a court order so if she wants to go she should go, then as soon as she gets back to VA file custody papers so that VA will have jurisdiction. And YES he is still responsible for child support
 
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Some Random Guy

Senior Member
her husband says they are not married and he's leaving. He's convinced her that they don't need a divorce or to go to court. That he doesn't owe her anything as far as alimony or child support.
Ohiogal says you are married and she is one who is always right.

But since her husband has stated his plans to abandon her and her children, she needs to think about protecting herself now. This means withdrawing at least half of the money in their joint accounts, driving to another bank and opening an account there. It means getting a divorce lawyer to make sure she is looking out for herself and her children. She doesn't need to file for divorce, just prepare for it.

Counseling is an option as well, but it should be in addition to legal counsel, not in place of it.
 

Samswife

Junior Member
Ohiogal says you are married and she is one who is always right.

But since her husband has stated his plans to abandon her and her children, she needs to think about protecting herself now. This means withdrawing at least half of the money in their joint accounts, driving to another bank and opening an account there. It means getting a divorce lawyer to make sure she is looking out for herself and her children. She doesn't need to file for divorce, just prepare for it.

Counseling is an option as well, but it should be in addition to legal counsel, not in place of it.

hmmm if you actually look up stuff you would see that ohiogal was probably wrong, if the county doesnt have any record of them being married then no they probably aren't. and my other points were valid. She can leave to go back to VA and file down there after she makes sure on her own that the paper she has is not valid. and NO he can not keep her there and YES he is responsible to support the children
 
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mommyof4

Senior Member
hmmm if you actually look up stuff you would see that ohiogal was probably wrong, if the county doesnt have any record of them being married then no they probably aren't. and my other points were valid. She can leave to go back to VA and file down there after she makes sure on her own that the paper she has is not valid. and NO he can not keep her there and YES he is responsible to support the children

We don't have to look it up as you should be able to provide the link to the information that backs up your claim.

Well, yes, she can leave. However, if she takes the children with her, she can also be assured that she will have to return the children to SC if Dad boogies into court and asks the court to issue a restraining order to keep her from keeping the children in VA.

If she is no longer a resident of VA, she cannot file there until she establishes legal residency (usu. 6 months in most states).

When you post the link for the actual information needed to determine what she can and cannot do, then I will double check to make sure VA doesn't have a longer period to establish legal residency and the rules for filing for divorce AND to make sure that VA does not have a statute that all marriages are presumed valid until evidence is presented in court that convinces a court to rule otherwise.

Thank you for your assistance in getting this vital information out to the OP and the general public.
 
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paroberts

Junior Member
Thank you.

I do want to make one thing clear. He is not abandoning the children. He wants very much to stay a part of their lives....in fact he is making these impossible demands because of that. He wants them all to move into the same apartment complex and share custody. He pays his bills, she pays hers and no child support.

It sounds good, but she cannot afford the particular apartment as she only works part time (makes about $400-$500 a month while he makes $72,000 yr). She is trying depserately to make sure that the kids needs are put first, but she just can't financially do what he wants.

Also, when they moved to SC he never put her name on the checking account so she has no access to their money. She just doesn't know how to proceed. She doesn't want it to turn nasty for the kids sake, but she feels like she is getting the raw end of the deal. The only assest they have is his truck which is paid off. Her car is in his name, but he has already said he is not making the payments and she is welcome to drive it until they come and reposes it. His credit is already shot and he doesn't care.


At this point she just wants to know where she stands legally in case things do go south.
 

Ohiogal

Queen Bee
hmmm if you actually look up stuff you would see that ohiogal was probably wrong, if the county doesnt have any record of them being married then no they probably aren't. and my other points were valid. She can leave to go back to VA and file down there after she makes sure on her own that the paper she has is not valid. and NO he can not keep her there and YES he is responsible to support the children
PUTATIVE SPOUSE. Try that. And then try getting an education. As for the rest of your response YOU are wrong. If she leaves the state, he can file to have the children remain there.
 
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LdiJ

Senior Member
Thank you.

I do want to make one thing clear. He is not abandoning the children. He wants very much to stay a part of their lives....in fact he is making these impossible demands because of that. He wants them all to move into the same apartment complex and share custody. He pays his bills, she pays hers and no child support.

It sounds good, but she cannot afford the particular apartment as she only works part time (makes about $400-$500 a month while he makes $72,000 yr). She is trying depserately to make sure that the kids needs are put first, but she just can't financially do what he wants.

Also, when they moved to SC he never put her name on the checking account so she has no access to their money. She just doesn't know how to proceed. She doesn't want it to turn nasty for the kids sake, but she feels like she is getting the raw end of the deal. The only assest they have is his truck which is paid off. Her car is in his name, but he has already said he is not making the payments and she is welcome to drive it until they come and reposes it. His credit is already shot and he doesn't care.


At this point she just wants to know where she stands legally in case things do go south.
She needs to beg or borrow the money from family to hire an attorney.
 

mommyof4

Senior Member
She also needs to up her hours or find a second part time job. I understand that what she has been doing was working for everyone, but obviously, her life is about to take a huge left turn.

She needs to start relying solely on herself for the support of their children and herself.
 

Ohiogal

Queen Bee
From Requirements for marriage - not been met yet?

A "putative spouse" is a man or a woman who has a good faith belief, as would any reasonable person under similar facts and circumstances, that there is a valid marriage. Because the "putative spouse" believed s/he had entered into a valid marriage, s/he often has rights despite the void or voided nature of the marriage. If the other "spouse" knows the marriage is not valid, that "spouse" does not get the benefit of putative spouse rights. Some of the rights of a putative spouse include the right to distribution of marital property, spousal support, attorney fees to the "innocent" spouse if needed to pursue the lawsuit, and survivorship rights.
Also see
788 F.2d 648

http://pacer.ca4.uscourts.gov/opinion.pdf/981456.U.pdf
 

Ohiogal

Queen Bee
Thank you.

I do want to make one thing clear. He is not abandoning the children. He wants very much to stay a part of their lives....in fact he is making these impossible demands because of that. He wants them all to move into the same apartment complex and share custody. He pays his bills, she pays hers and no child support.

It sounds good, but she cannot afford the particular apartment as she only works part time (makes about $400-$500 a month while he makes $72,000 yr). She is trying depserately to make sure that the kids needs are put first, but she just can't financially do what he wants.

Also, when they moved to SC he never put her name on the checking account so she has no access to their money. She just doesn't know how to proceed. She doesn't want it to turn nasty for the kids sake, but she feels like she is getting the raw end of the deal. The only assest they have is his truck which is paid off. Her car is in his name, but he has already said he is not making the payments and she is welcome to drive it until they come and reposes it. His credit is already shot and he doesn't care.


At this point she just wants to know where she stands legally in case things do go south.
She is married and has a right as the putative spouse to file for divorce, custody, child support, equitable distribution of marital property, alimony and what ever else she would be entitled to as a spouse.
 

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