Please Help Calif. Putative Spouse-Voidable Marriage

[PhyllisNor]

What is the name of your state? California. Married a 2nd spouse in 1972 Found in 1974 that first divorce had not been completed. Completed divorce from spouse #1, the divorce was not back dated making 2nd marriage valid.

2nd spouse just left (26th Oct 2002) and I have started annulment/voidable marriage proceedings.

The Lawyer has entered me as Putative spouse, all I have read (on the internet) says that I may have been a putative spouse until 1974 but that I could not be considered a putative spouse after 1974. Have I read that right?

If so will I then have to sue as a cohabitant? As we have been living as husband and wife (neither of us doing anything to make this a legal marriage).

Really Worried
Thank you
Phyllis

 

[I AM ALWAYS LIABLE]

What is the name of your state? California. Married a 2nd spouse in 1972 Found in 1974 that first divorce had not been completed. Completed divorce from spouse #1, the divorce was not back dated making 2nd marriage valid.

2nd spouse just left (26th Oct 2002) and I have started annulment/voidable marriage proceedings.

The Lawyer has entered me as Putative spouse, all I have read (on the internet) says that I may have been a putative spouse until 1974 but that I could not be considered a putative spouse after 1974. Have I read that right?

If so will I then have to sue as a cohabitant? As we have been living as husband and wife (neither of us doing anything to make this a legal marriage).

Really Worried
Thank you
Phyllis

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My response:

In what year did you discover these facts? - -

"Married a 2nd spouse in 1972 Found in 1974 that first divorce had not been completed. Completed divorce from spouse #1, the divorce was not back dated making 2nd marriage valid."

IAAL

 

[PhyllisNor]

Found 1st divorce was not final in 1974 took steps in 1974 to finalize continued husband and wife relationship with 2nd spouse with out doing anything to legimize the 2nd marriage.

2nd spouse has had advice to have all money, stock and vehicles in his name and he has done that, believing all will be his. The property we own with joint names.

Thank you
Phyllis

 

[I AM ALWAYS LIABLE]

My response:

So, from 1974 to the present time, you NEVER had a "good faith" belief that you and he were married; i.e., you knew, all along, that you weren't married.

A party who has the requisite objectively reasonable "good faith" belief may be a putative spouse where any legal infirmity in formation of the marriage renders the marriage invalid. [Estate of DePasse (2002) 97 Cal.App.4th 91, 107, 118 Cal.Rptr.2d 143, 155] A "Good faith" belief must relate to validity of marriage under California law: See Estate of DePasse, supra, 97 Cal.App.4th at 107-108, 118 Cal.Rptr.2d at 156 - - no good faith belief where party knew a license was essential to a valid California marriage but did not obtain one.

Although parties to an invalid marriage have no "community property" rights per se, property acquired during the void or voidable marriage, which would have been community property but for the impediment to a valid marriage, may be deemed "quasi-marital property" and divided in a nullity proceeding as if it were community property (i.e., equally, pursuant to Ca Fam § 2500 et seq.). However, quasi-marital property rights attach only if "putative spouse" status is established (good faith belief marriage was valid). [Ca Fam § 2251]

But, since you never had a "good faith" belief that you were married, the property between you is "separate property" and not "community property."

However, all is not lost - -

You may be able to make a Marvin v. Marvin (1976) 18 Cal.3d 660, 667, 134 Cal.Rptr. 815 "palimoney" claim on the non-marital estate property that is being held in his name. But Marvin "palimony" suits are not family law actions, and are thus subject to rules governing injunctive relief in ordinary civil actions. [Schaefer v. Sup.Ct. (Christopher) (1986) 180 Cal.App.3d 305, 309, 225 Cal.Rptr. 513, 515]

If your attorney is only able to take your property claims, and division of assets claim to 1974, then you may want to consider THIS route in order to get your share of the entire assets you and he accumulated.

Discuss this possibility with your attorney.

IAAL

 

[PhyllisNor]

Thank you that is the way I read Putative spouse too! I will ask the lawyer today.

How about as cohabitants? It appears that all I have read (on the internet) says that is the way to go.

Really stressing now
Thank you
Phyllis

 

[I AM ALWAYS LIABLE]

Thank you that is the way I read Putative spouse too! I will ask the lawyer today.

How about as cohabitants? It appears that all I have read (on the internet) says that is the way to go.

Really stressing now
Thank you
Phyllis


==================================

My response:

Listen, okay?

Discuss with your attorney a "Marvin" action against your "boyfriend", and discuss dropping any further action concerning the "putative spouse" theory because, in my opinion, it's next to worthless; i.e., if all you stand to gain is a division of those assets accumulated only in 1974, then, again in my opinion, you'll be spending dollars to obtain pennies.

I think you'd have a better chance at a division of all the assets if you sue your boyfriend "civilly" under a "palimony" theory, and your money for attorney's fees would be better spent along that theory.

It never ceases to amaze me that people know there is no "Common Law" marriage in California, yet will spend upwards of 30 years together, and then wanting a separation and division of assets under a "Community" or a "Quasi-Community" law theory. Usually, one of the two parties get burned.

This is why, for your own protection, you needed to make sure way back in 1974 that his prior marriage was terminated. I certainly hope that other people, who are similarly situated, are reading this post and learning from your mistakes - - because that "brick wall" really hurts.

IAAL

 

[I AM ALWAYS LIABLE]

My further response:

Please get back to this thread to let me know what was discussed between you and your attorney, and whether any decision has been made concerning my alternative theory (Marvin action) I suggested.

Perhaps we can thrash this out even more.

While I will never "work against" your attorney's suggestions, because in your case he's the "final word", it can't hurt to have more than one attorney attempting to assist you.

IAAL

 

[PhyllisNor]

Thank you

I have a phone appt. set, for 3pm today, with the Attorney, and will keep posting any new developments.

Thank you
Phyllis

 

[I AM ALWAYS LIABLE]

My further response:

The fact of nonmarital cohabitation is not itself a barrier to the judicial recognition and enforcement of express and implied agreements between the parties. Nonmarital cohabitants have the same right to enforce contracts and to assert equitable rights and interests as do any other unmarried persons. And, courts may also look to a "variety of other remedies" in order to protect the parties' lawful expectations. [Marvin v. Marvin (1976) 18 Cal.3d 660, 684, 134 Cal.Rptr. 815, 831]

The court in "Marvin" said - -

"We do not seek to resurrect the doctrine of common law marriage . . . Thus we do not hold that plaintiff and defendant were 'married,' nor do we extend to plaintiff the rights which the Family

 grants valid or putative spouses; we hold only that she has the same rights to enforce contracts and to assert her equitable interest in property acquired through her effort as does any other unmarried person." [Marvin v. Marvin, supra, 18 Cal.3d at 684, 134 Cal.Rptr. at 831, fn. 24 (brackets added)]    

IAAL

P.S.  You might be wondering who "Marvin" is - - right?

 

[PhyllisNor]

What are you telling me below? Do I go cohabitant?:
"The fact of nonmarital cohabitation is not itself a barrier to the judicial recognition and enforcement of express and implied agreements between the parties. Nonmarital cohabitants have the same right to enforce contracts and to assert equitable rights and interests as do any other unmarried persons. And, courts may also look to a "variety of other remedies" in order to protect the parties' lawful expectations. [Marvin v. Marvin (1976) 18 Cal.3d 660, 684, 134 Cal.Rptr. 815, 831] "


Thank you, I do know who Marvin vs. Marvin refers to, did not really watch it but occasionally did catch blurbs about it on the evening news.

The Lawyer did not call me today, he was called back to court. Have made an appointment to see him in his office Tuesday, so will update after that meeting.

Thank you
Phyllis

 

[I AM ALWAYS LIABLE]

My response:

You said - -

"Do I go cohabitant?"

===============================

I thought you understood that already. That's what "Marvin" was about - the contractual rights of cohabitating parties. That's your only alternative - - with the exception of just walking away.

Let me know what happens when you speak to your attorney.

IAAL

 

[PhyllisNor]

Okay Palimony=cohabitation

Thank you
Phyllis

 

[PhyllisNor]

Always Liable

I printed out all of your responses and gave them to my Lawyer, he does believe you are quite right.

My lawyer is going to talk to ex's lawyer, tomorrow morning, and see what the response is to the original filing, which asks that all assets be shared 50/50. If ex agrees to the 50/50 split than that is what will be done. (this is the cheapest and quickest way to go)

If ex does not agree to the 50/50 split and claims all assets as his than my lawyer is going to start the palimony civil action against ex. (this is the more expensive and longer drawn out way to go).

Will have more information tomorrow

Thank you
Phyllis

 

[I AM ALWAYS LIABLE]

Always Liable



"I printed out all of your responses and gave them to my Lawyer, he does believe you are quite right."


==================================

My response:

Of course I am. Was there ever really any doubt?

IAAL

 

[PhyllisNor]

IAAL

I now need to know what documentation I now need for the Marvin v Marvin. Are filing married tax returns and purchase of property as husband & wife, (joint tenant) enough? If not what more?

What questions are going to be asked of each of us by each others lawyer and our own lawyer?

I really want to be prepared and want my lawyer prepared for any and all that will/might come up (really want neither my lawyer nor I to have any surprises)

Thank You
I will be better for this