Never legally married!

[crystaltoo]

What is the name of your state?ca
My husband (?) thought he was married to a woman for 15 years. On checking with the county clerk's office we found no record of the marriage. The ex was notified and we got married.

Now she is filing married to him on her tax return. She refuses to accept this fact and will not provide any documentation to contradict the information.

What will happen? What do we do to protect ourselves?

 

[coupleneedshelp]

im not a professional, but in ny i know that there is a concept of common-law marriage, even if not legally married. he might need a divorce anyway.

how did they file their tax returns until now?

why does she gain by filing married. if she has the kids and wants EIC she can file as head of household, and save by not having to split the refund with him. if she's filing married to get his tax refund based on money he paid in, he can file separately and after some time the irs will award the refund to him, or he can apply the refund to 2005 taxes and pay less estimated tax this year.

anyway, your bigger problem is in the marriage, equitable distribution, etc. which i cant really help you with.

 

[rmet4nzkx]

What is the name of your state?ca
My husband (?) thought he was married to a woman for 15 years. On checking with the county clerk's office we found no record of the marriage. The ex was notified and we got married.

Now she is filing married to him on her tax return. She refuses to accept this fact and will not provide any documentation to contradict the information.

What will happen? What do we do to protect ourselves?

If your husband had a confidential marriage to this woman, there is no public record only a record in the county where the marriage was performed and only accessable to the parties. Did he have a confidential marriage to this woman? If so, he needs a divorce and he is a bigamist and your marriage not legal. If there is no divorce, she can file as married. Your income tax returns will be subject to amendment. Did they have a common law marriage in a state recognizing common law marriage and move to California? Then the other states marriage laws apply and still requires divorce. Apparently he thought he was married to her, looks like he didn't get a divorce for some reason.

 

[rmet4nzkx]

im not a professional, but in ny i know that there is a concept of common-law marriage, even if not legally married. he might need a divorce anyway.

how did they file their tax returns until now?

why does she gain by filing married. if she has the kids and wants EIC she can file as head of household, and save by not having to split the refund with him. if she's filing married to get his tax refund based on money he paid in, he can file separately and after some time the irs will award the refund to him, or he can apply the refund to 2005 taxes and pay less estimated tax this year.

anyway, your bigger problem is in the marriage, equitable distribution, etc. which i cant really help you with.

New York no longer recognizes common law marriages of it's residents. Prior to January 1, 1902 common law marriages were permitted in New York. From January 1, 1902 to January 1, 1908 common law marriages were abolished. As a result of a legislative error, common law marriages were again permitted in New York from January 1, 1908 to April 29, 1933, when they were finally abolished, so unless OP's husband's marriage took place in New York prior to 1933 or another state recognizing common law marriages, this is not relevant. This question is about CALIFORNIA, which does not recognize common law marriages of it's residents, it is also a community property state, not an equal distribution state. Please, don't answer questions for which you don't have state specific information to contribute or give incorrect information, that does nothing but confuse the issues.

 

[coupleneedshelp]

New York no longer recognizes common law marriages of it's residents. Prior to January 1, 1902 common law marriages were permitted in New York. From January 1, 1902 to January 1, 1908 common law marriages were abolished. As a result of a legislative error, common law marriages were again permitted in New York from January 1, 1908 to April 29, 1933, when they were finally abolished, so unless OP's husband's marriage took place in New York prior to 1933 or another state recognizing common law marriages, this is not relevant.

Interesting. does this mean that in NY if someone was not legally married, but had a religious ceremony and religious marriage contract, and they lived together and filed joint tax returns, there is still no issue of divorce or equitable distribrution of assets? This does have relevance. TIA

 

[crystaltoo]

California does not recognize common law marriage.

The only benefit the "ex" gets for filing married on her taxes or anywhere else is her emotional denial of the lack of the marriage. There is no monatary gain for either party, only complication.

There was no confidential marriage. We checked that too. In fact, we had an attorney check into it and conclusively, there is no marriage UNLESS she manages to dig up the unrecorded documents and file them. The attorney said the original clerk that allegdly married them has to make it right.

My issue is with the IRS. My ex states "that's her problem". But from my experiece, the government has a problem. When I was married once before, the state issued me a refund for all the taxes my ex paid by mistake. Can't wait to see what they do with this!

 

[seniorjudge]

What is the name of your state?ca
My husband (?) thought he was married to a woman for 15 years. On checking with the county clerk's office we found no record of the marriage. The ex was notified and we got married.

Now she is filing married to him on her tax return. She refuses to accept this fact and will not provide any documentation to contradict the information.

What will happen? What do we do to protect ourselves?

My husband (?) thought he was married to a woman for 15 years.

Why did he think this?

What prompted the trip to the courthouse?

 

[crystaltoo]

My husband and his previous ..non...wife went to the courthouse 15 years ago and performed the legal function required by California to marry. When he went to file for divorce, his ex refused to give him information about the date of the marriage. When he called the county courthouse and the state, he found, by error, the license and marriage had never been recorded. Fluke? Yes. They never requested a copy of the record, so neither of them knew about it. If they had never wanted to file for divorce, and if she hadn't been so obstinant about cooperating, they never would have known and he would have had to pay thousands for an attorney unnecessarily.

 

[seniorjudge]

My husband and his previous ..non...wife went to the courthouse 15 years ago and performed the legal function required by California to marry. When he went to file for divorce, his ex refused to give him information about the date of the marriage. When he called the county courthouse and the state, he found, by error, the license and marriage had never been recorded. Fluke? Yes. They never requested a copy of the record, so neither of them knew about it. If they had never wanted to file for divorce, and if she hadn't been so obstinant about cooperating, they never would have known and he would have had to pay thousands for an attorney unnecessarily.

So your sweetie and his former sweetie went to the courthouse around 15 or so years ago, asked to get married, and did get married. Then they lived together as man and wife for x number of years. They held themselves out as man and wife. No one (including them) ever disputed it.

What makes you think they are NOT married? Because some papers are lost?

They did everything they could possibly do to have a ceremonial and valid marriage in your state and, in fact, lived as if they were married. So, I think they are still married.

(I am NOT talking about common law marriage.)

 

[crystaltoo]

So, is that your opinion as a judge or a personal opinion? We contacted an attorney who found the law said if there was no marriage recorded, there is no marriage.

 

[seniorjudge]

So, is that your opinion as a judge or a personal opinion? We contacted an attorney who found the law said if there was no marriage recorded, there is no marriage.

Okay, well I guess that settles that!

Maybe a CA lawyer can give us a cite to that statute.

http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=22676517796+2+0+0&WAISaction=retrieve

The law seems to make issuance of marriage certificate permissive instead of mandatory:

424. At the request of, and for, either party to a marriage, the
person solemnizing the marriage shall issue a marriage certificate
showing the facts specified in Section 422.

 

[seniorjudge]

http://www.divorcesource.com/CA/CODE/350_360.html

More info on marriage licenses.

I don't have a clue about CA law, so have your lawyer tell you the statute that says if there is no marriage license then there is no marriage.

I want to read that statute.

Thanks.

 

[crystaltoo]

Well, I have a copy of what the lawyer gave me and it certainly ISN'T clear. In fact, 306 says "noncompliance with this part (licensed, solemnized, and authenticated) by a nonparty to the marriage does not invalidate the marriage. However, 350 reads "Marriage License required" and "a license was a mandatory requirement for a valid marriage in California. The Family Code specifically provided that the term "shall" indicated that the required action was mandatory(Fam C squiggily 6,12)" and goes on in 425 to say "If no record of the solemnization of a marriage previously contracted is known to exist, the parties may purchase a license and certificate of marriage..." I admit that isn't clear whether it refers to the original party purchasing a license or another party purchasing a license.

I don't know! What is the purpose of proving the marriage if it isn't wanted? You can't force a person to be married to someone which is exactly what the ex is trying to do.

 

[seniorjudge]

Call for IAAL

Well, I have a copy of what the lawyer gave me and it certainly ISN'T clear. In fact, 306 says "noncompliance with this part (licensed, solemnized, and authenticated) by a nonparty to the marriage does not invalidate the marriage. However, 350 reads "Marriage License required" and "a license was a mandatory requirement for a valid marriage in California. The Family Code specifically provided that the term "shall" indicated that the required action was mandatory(Fam C squiggily 6,12)" and goes on in 425 to say "If no record of the solemnization of a marriage previously contracted is known to exist, the parties may purchase a license and certificate of marriage..." I admit that isn't clear whether it refers to the original party purchasing a license or another party purchasing a license.

I don't know! What is the purpose of proving the marriage if it isn't wanted? You can't force a person to be married to someone which is exactly what the ex is trying to do.

Let's see if we can get IAAL on here.

He's the family law expert in CA.

 

[rmet4nzkx]

Your bigamist husband needs to get a divorce.

"The attorney said the original clerk that allegdly married them has to make it right. " Look up Nunc pro Tunc. But as you acknowledge the lack of filing of documents does not invalidate the marriage, there is a means to repair it. Many people only separate and never divorce.

He doesn't know what day he got married?

"My husband and his previous ..non...wife went to the courthouse 15 years ago and performed the legal function required by California to marry. When he went to file for divorce, his ex refused to give him information about the date of the marriage."
You have already given facts indicating they have a valid marriage including a license. "306 says "noncompliance with this part (licensed, solemnized, and authenticated) by a nonparty to the marriage does not invalidate the marriage. However, 350 reads "Marriage License required" and "a license was a mandatory requirement for a valid marriage in California. The Family Code specifically provided that the term "shall" indicated that the required action was mandatory(Fam C squiggily 6,12)" and goes on in 425 to say "If no record of the solemnization of a marriage previously contracted is known to exist, the parties may purchase a license and certificate of marriage..." He needs to do this to get a divorce.

"Now she is filing married to him on her tax return. She refuses to accept this fact and will not provide any documentation to contradict the information."
She has done nothing wrong, she doesn't have to do anything. He can file for divorce if he wants a divorce.

Your bigamist husband is not telling you the truth. I suggest you contact an attorney re an annulment because you are in for a bad ride with this con artist.