prohibiting common law felons

[sputnam]

What is the name of your state (only U.S. law)? Montana
A friend in federal prison is about to be released. His common law wife is on Montana probation. She was told by her P.O. that it is a violation for him to reside with her while she is on probation. They had been together for more than 5 years before their offenses. Does anyone know if they can prohibit them from living together while they are both on probation. The Feds have no issue with it, just MT probation.

[cyjeff]

Sounds like they are living alone.

that violates one of the "rules" of common law marriage in Montana..

Montana: The requirements for a common-law marriage are: (1) capacity to consent to the marriage; (2) an agreement to be married; (3) cohabitation; and (4) a reputation of being married.

Have they been living together? No, no they haven't because he has been in the big house.

You cannot just TELL people you are married and have it be so.

[sputnam]

That is correct, however they were cohabitating for more than 5 years PRIOR to the offense. Just because he is locked up doesn't negate their committment. Her kids consider them as their father, and want to know when he is comong home.

[cyjeff]

Originally Posted by sputnam

That is correct, however they were cohabitating for more than 5 years PRIOR to the offense. Just because he is locked up doesn't negate their committment. Her kids consider them as their father, and want to know when he is comong home.

The fact that her children mistakenly call him dad doesn't mean anything in this case.

However, they haven't been cohabitating LATELY... and sporadic sharing of residence is not covered.

[CavemanLawyer]

I don't agree with that cyjeff.

A common law marriage is something that only exists in theory until the point that a court rules that a common law marriage was in fact created. But a court can look back in time any number of years and determine that a common law marriage was formed at some point when the couple was co-habitating, even if the couple separated for many years after that. In fact, that is how most common marriages are established. (ex: After separation one party asserts that they were common law married at some point, so now seek divorce and a settlement of "their" property, even though they haven't been living together for years.)

So... this friend of yours may or may not be common law married to this woman but the Court supervising her probation is not going to be making that determination anyway. The answer to your question is that you just have to look at the written terms of her probation to see what she can and can't do, and she can't argue too much about it because she agreed to those terms when she accepted probation. Most probation judgments prohibit the probationer from fraternizing, or certainly co-habitating, with persons of "ill repute" which definitely applies to convicted felons. The terms may specifically prohibit contact with convicted felons. Usually courts will waive this condition as it relates to certain family members, but it is up to the Court. She can petition the Court to make an exception for this man that she considers to be her husband. It will greatly strengthen their argument if this man has any kind of a legal duty to support these children such as a custody order a legal right to see them, such as a visitation order. Her PO really should work with her on this issue and get the issue heard by the Court. If the PO doesn't want to help then she may just have to hire an attorney or try filing a motion herself.

[cyjeff]

Originally Posted by CavemanLawyer

I don't agree with that cyjeff.

A common law marriage is something that only exists in theory until the point that a court rules that a common law marriage was in fact created. But a court can look back in time any number of years and determine that a common law marriage was formed at some point when the couple was co-habitating, even if the couple separated for many years after that. In fact, that is how most common marriages are established. (ex: After separation one party asserts that they were common law married at some point, so now seek divorce and a settlement of "their" property, even though they haven't been living together for years.)

So... this friend of yours may or may not be common law married to this woman but the Court supervising her probation is not going to be making that determination anyway. The answer to your question is that you just have to look at the written terms of her probation to see what she can and can't do, and she can't argue too much about it because she agreed to those terms when she accepted probation. Most probation judgments prohibit the probationer from fraternizing, or certainly co-habitating, with persons of "ill repute" which definitely applies to convicted felons. The terms may specifically prohibit contact with convicted felons. Usually courts will waive this condition as it relates to certain family members, but it is up to the Court. She can petition the Court to make an exception for this man that she considers to be her husband. It will greatly strengthen their argument if this man has any kind of a legal duty to support these children such as a custody order a legal right to see them, such as a visitation order. Her PO really should work with her on this issue and get the issue heard by the Court. If the PO doesn't want to help then she may just have to hire an attorney or try filing a motion herself.

I was defaulting to the PO officer that is very close to this case.

I assumed that the establishment of the marriage wasn't quite as cut and dry as the poster made it appear.

[cyjeff]

One last question, has mom been cohabitating with anyone else while dad was in prison?

[sputnam]

No she hasn't been cohabitating. She's eagerly awaiting his release.