Divorced...or Still Married?

What is the name of your state? Alabama

My Mother and Father filed for divorce in 1976 after 17 years of marriage, due to my Mothers health problems. Afterwards, and before the divorce was final, they continued to live together on and off...my Mother remained on my Father's employer's health insurance...and they filed joint income tax returns for approximately 4 more years. Since Alabama recognizes "common law" marriage...would they still be considered legally married? After that 4 years, my Mother came to live with me and my Dad remarried someone else that he divorced a short time later. Now, my Father has lived with a woman, as his wife, for the past 19 years. He has brain cancer, and may only have a few months to live. She controls him and everything he does and has, and is trying to shut me and my family out of his life. We haven't been a problem to her much in the past because we have lived out of state for the last 20 years, being military. Now my husband is retired and we moved back here to be near him...and she doesn't like it. We're strangers and it's all about her, her kids, and her grandkids. They're his family now! I'm sure my Father doesn't have a WILL, and I'm sure his "wife" plans to take possession and control of everything my Father has...including his sister and her money that my Father now controls by POA. My Mother believes that she and my Father are still legally married...thereby making his marriage to this woman void...and that we can use this against her and to our advantage, if she tries to shaft me after my Dad is gone. What do you think? This woman is very thrifty and manipulative, and has family legal connections...so I'm going to need everything I can get to fight her with, if it comes down to it! Please help! Legally married, yes or no? Thanks!

[stephenk]

The vultures are circling!

[nextwife]

I'm Curious. If he dies leaving a large medical bill to pay off and no remaining assets, is your mom still planning on claiming responsibility as the spouse?

Living together in and of itself does NOT establish a relationship as a common law marriage. There would need to be other evidence that these parties were publically representing themslves as husband and wife during that time. A jointly executed mortgage (as Husband and wife) during that post-divorce cohabitation period, might be one example.

Floyd E. HUDSON v. Barbara V. HUDSON.
Civ. 2753.
Court of Civil Appeals of Alabama.
Sept. 9, 1981.

Proceeding was instituted on motion of husband to set aside a final divorce judgment. The Circuit Court, Mobile County, Charles Dodson, J., denied motion, and husband appealed. The Court of Civil Appeals, Edward N. Scruggs, Retired Circuit Judge, held that refusal to set aside divorce judgment on basis of newly discovered evidence that parties had never been legally married because, at time of marriage, wife was married to another was not an abuse of discretion in absence of evidence of mutual intent on part of wife and other individual to enter into a common-law relationship. Affirmed.

1. Marriage
A valid common-law marriage requires capacity, present agreement or consent to be husband and wife, and consummation.

2. Marriage
A mere resumption of cohabitation between former spouses after divorce does not, in itself, establish a common-law marriage since parties must also manifest a mutual intent to be man and wife......

Is she only now claiming that his current marriage is invalid? Or the one before that?

I'm Curious. If he dies leaving a large medical bill to pay off and no remaining assets, is your mom still planning on claiming responsibility as the spouse?

nextwife, THAT is a very good question ... one that separates the 'men from the boys', so to speak! Or as my Dad would say, "This is where the rubber meets the road!"

..and that we can use this against her and to our advantage, if she tries to shaft me after my Dad is gone.

Whatever the outcome of your quest, remember, if the final answer to your question goes in your favor, you will have to take the bad with the good. I believe you and your mother should consider nextwife's question carefully.

My Mother has always believe that they were still legally married, but never had a reason or desire to reveal it...and she never remarried. My Mother doesn't want anything for herself. She just wants to protect the property she has lived on for almost 40 years, that I will eventually inherit, and to help me. I'm not after their assets either, only a a few personal items of my Dad's. My main problem/concern is that this woman is trying to take control of my Aunt, that lives in an assisted living facility, and her bank account. Both of which my Dad has POA over now. I feel that she has a right to what they have aquired together over the past 19 years, but she doesn't have a right to my Aunt's assets, especially since my Aunt has never liked her and doesn't want her to get anything of hers. If there's a possibility that their marriage is not valid, we mainly want to use this information as leverage to keep her in check, in case we need it. As far as my Dad's medical bills and expenses, we're not concerned. He has excellent insurance, and a lot more assets than expenses. They didn't enter into any new joint mortgages during that 4 years after filing for divorce, but we believe that the medical insurance and joint tax returns prove to convey their continued existance as husband and wife.

[nextwife]

AS to your mom's residence, if it was purchased as Jt. Tenants, the surviving Jt. Tenant is normally entitled to full ownership upon establishing the demise of the other Jt. Tenant. If ownership was as Tenants in Common, his interest passes to his heirs per his will.

If your aunt is legally competant, she has the option to revoke her POA and appoint another. Also, a POA does not pass on to heirs, and does not automatically give anyone else any powers to act for her upon the death of the Attorney in Fact.

Yes. They bought the property jointly. In fact, for protection purposes, it was later changed to, and still does, reflect 4 names...my Father, Mother, Grandmother, and mine. I think it states "with right of survivorship". I need to make sure. As far as my Aunt goes...she is diagnosed with senile dementia and is not allowed to revoke or reassign her POA. We tried. But right now, I don't want to press it by going to court, because of my Dad's weakened condition. I appreciate your input.