How best to proceed ina Dissolution of Marriage case Where there is no Valid Marriage

[Ohiogal]

CA is not one of the states that still recognizes common law marriage. Those states are: Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Utah and Texas.

Therefore filing a joint tax return in CA isn't going to contribute to common law status, although it might cause them other problems. If there is no marriage license, there is no putative marriage...and if there was, there is still the whole "voidable" issue as well as the prenup issues. This one REALLY needs a consult with a real attorney....not a law student.

I said NOTHING about common law marriage. Why don't you google putative marriage. A marriage license is NOT necessarily needed at all. The prenup issue is another thing. Quit thinking you know what you what I am talking about or why I am asking the questions I am asking.

 

[Bali Hai]

In response, I am not practicing law, I am merely researching the law in which to aid my sister. Obviously, I am not representing her in court. I am quite familiar with unethical practices. If it makes the legal minds happier lets say this case is hypothetical.

No there was no sponsoring because she was unaware his citizenship was not indeed valid.

I don't believe that for a NY minute and I don't think an immigration judge will either.

Also, both believed they were married but no paper work ever established the defacto marriage. Indeed there is none. However, there is a dissolution filed but there is nothing to dissolve. In addition there was a prenup and cohabitation agreement signed prior to the marriage in theater. What would you hypothetically do...?

Hypothetically, she should reach for her wallet until the decision is made to let him stay in this country or deport him. Both options will be expensive.

 

[ecmst12]

Bali, shut up. If she didn't sign the form, then she didn't sponsor him and has no obligations to support him.

 

[Zigner]

contact my friend is a family law attorney for 10 years and he said that Im right in my assertions a this is a complex case and b my unclean hands assertion is interesting. Which for a third year law student is great to hear. Putative does not apply in this case. Really neither does marvin. Facts are simple. Not married which judge will affirm that they both believed they were. Marriage by judgement. The Prenupt will then attach and case is over. Even so the other avenue is civil which contract law will take precedence and a prenupt is just that.

So THAT'S where the FA Crystal Ball went!

 

[Ohiogal]

So THAT'S where the FA Crystal Ball went!

I want to know why putative spouse doesn't apply when OP states that both of them BELIEVED they were. That is the very definition of being a putative spouse -- believing you are married when you are not legally married (i.e. no license).

 

[Zigner]

I want to know why putative spouse doesn't apply when OP states that both of them BELIEVED they were. That is the very definition of being a putative spouse -- believing you are married when you are not legally married (i.e. no license).

Here's the California law on the matter - but hey, the Crystal Ball's never been wrong!

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=02001-03000&file=2250-2255

 

[single317dad]

I said NOTHING about common law marriage. Why don't you google putative marriage. A marriage license is NOT necessarily needed at all. The prenup issue is another thing. Quit thinking you know what you what I am talking about or why I am asking the questions I am asking.

Specifically, http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=02001-03000&file=2250-2255

 

[Zigner]

Specifically, http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=02001-03000&file=2250-2255

This looks vaguely familiar

 

[tranquility]

What is the name of your state (only U.S. law)? California

Okay, yes I am already familiar with Palimony, after all I live in the state where it all started. I am a student of the law, so this question is more for the advanced. Quick synopsis as this is a real case involving my sister.

Let me be the first to call out Shenanigans. I'm not sure exactly where or why. I would have thought homework, but no way such questions as the OP asks for help on would be a part of a law school exam or homework. So, I assume there is a real thing, but our third year student is either the worst ever, or seems.....

Prenuptial Agreement and Cohabitation agreement exists which precludes either from getting spousal support, it was well written so Im not really all that concerned about its inforceability since it was witnessed etc.

At some point an attorney should know how to use an "e" or a " ' " when appropriate. Also, why in the heck would a person aware of the requirements of a valid prenuptial even mention it being witnessed? The "etc" is the key. From how hard the OP is pushing the validity of the prenup, I bet it may not be good at all. I mean, sheesh. Any attorney who could not tie up a divorce or litigation over a prenuptial is simply not competent. Even the rich and famous with expensive lawyers who make bulletproof agreements find they are a sieve of weakness when a shark gets a hold of it.

There was an application for Marriage between the two parties however, there is no witness, no soleminization, nada. California has no record of them ever being married.

They have held themselves out as husband and wife.

There's a lot more to this part too. I think putative spouse may be a very good claim at the least. Fraud by some party at the most. What happened? Pulling the license and then holding out to be husband and wife requires more facts.

It was discovered that Husband is in fact an illegal alien and his only purpose of marriage was to gain citizenship. He has two past failed marriages which he lied on application about, (yes I am familiar with the case precedent in Dougles V Dougles as well as the Marriage of Meager... In addition he concealed the fact that he had two separate Domestic Violence Restraining orders against himself, My sister currently has filed a restraining order against him for indeed domestic violence.

What possible benefit would it be to Husband to not be married if the purpose was to gain citizenship? This looks bad for Sister being the one who is being deceptive here. Sure, it seems he was a bad man. But, unless he was actually still married when he entered into this purported marriage, it doesn't really make much of a difference here.

Currently, they have no children, no comingled property, no property whatsoever together. However, my sister has an inheritance which she uses as monthly income, it was gained before even meeting the husband or whatever we want to call him.

View the quasi-marital property statutes to see what they may have together. I'd call him putative spouse absent other facts indicating this was only meant to be a living together arraignment.

He filed as a petitioner to dissolve the marriage asking for 4000 grand in support and 50% of all property which is not his and precluded in prenupt

While I understand many students choose law as they heard there would be no math, 4000 grand? If he's really looking for $4 million, I'm thinking an attorney would be affordable. (Appropriate, no matter what. Even a request for $48000 a year and 50% of the property is certainly worth it.) Then again with the purported agreement. I'll hold off on that until later.

a response is now needed, but the question is should i move to annul, enforce the prenuptial which precludes him from getting anything, or response with a motion for summary judgement or dismissal...

Hmm, annul a nullity. Enforce the prenuptial to preclude him from getting anything. (Which is very problematical in the facts alleged so far. Can you tell me why 3rd year?) Summary judgment? The facts are so developed to be there yet? Dismissal? What's that?

I am very confused and I havent been able to find any case precedent.

That's because you haven't had Professor Kingsfield from the paper chase, "You come in here with a skull full of mush and you leave thinking like a lawyer." Um...there's not going to be a "case". You have to break things down to issues. Each issue may have a case or cases to argue. The magic of a single case that covers all the issues is a little fantasy for those who don't think like a lawyer.

Obviously, he entered the contract with unclean hands but it goes both ways.

Maybe he had unclean hands, but the core of the matter probably gets down to Sister's hands. I mean, if this will be in equity and not in law.

Should I demurr all facts and move for dismissal on standing or should I contend he has standing and move to enforce the prenupt?

Demurr all facts? You could demur to facts (as in object), but the usual legal jargon way one would demurrer (as in a legal process claim) would not be on the facts. If you want to litigate the facts go ahead. Contend he has "standing"? You mean stipulate? My goodness, stipulate what? There was a marriage? That he is in the proper court? What? Sheesh, again.

Please no "get a lawyer" I know this, which is why I am trying to do all the legal case research and pleadings to get a lawyer merely to appear on a limited scope basis. Whats the best thing to do?

Get a lawyer as you have no clue. By the way, doing the pleadings will subject you to malpractice from sister if you continue.

contact my friend is a family law attorney for 10 years and he said that Im right in my assertions a this is a complex case and b my unclean hands assertion is interesting.

While there are certainly complexities, without the facts we have no issues. Since the facts given us are conclusions and/or fuzzy (probably on purpose), I have no idea if the facts or the issues are complex. I am uncertain where the unclean hands are going to help with anything here. You are aware it is a equitable maximum, correct? That means that, if when the court finds the equities of the situation, it might take that into account. It will not win a case at law. It will not help if both parties have acted wrongly. I would be interested in what he found interesting about unclean hands other than it might shift some settlement from one to the other--just to make it fair.

Which for a third year law student is great to hear. Putative does not apply in this case.

Again with the third year. You're not doing well in class or haven't had family law yet, have you? Why would you say putative does not apply? I know why you want to conclude that, but why are you sure it is true?

Really neither does marvin. Facts are simple.

Hmm...you're sure one party can't claim some contract? I don't doubt it, but, well, there's always a claim.

Facts are simple. Not married which judge will affirm that they both believed they were. Marriage by judgement. The Prenupt will then attach and case is over. Even so the other avenue is civil which contract law will take precedence and a prenupt is just that.

The judge can determine if there were facts that created a marriage or a putative marriage, I don't think he can make unmarried people married. (Unless the formalities have been followed.) The Prenup is almost assuredly not going to be as solid as you believe. What important fact(s) are missing? "Witnesses" are irrelevant. Finally, and another reason why I still call Shenanigans in some way, guess what one does NOT need in a Prenuptial that one DOES need in a contract?

Have sister get a lawyer 3rd year. She needs real representation.

 

[Bali Hai]

Bali, shut up. If she didn't sign the form, then she didn't sponsor him and has no obligations to support him.

Shut up you say? Please remain professional and make your point without the unsophisticated attacks.

 

[rfabiano1]

part one

Sorry I often do not proofread my postings, I understand that may make me seem stupid.

Here is why Putative does not apply

Ceja v. Rudolph & Sletten, Inc

"[T]he employer moved for summary judgment claiming that Nancy Ceja did not qualify as a putative spouse. The trial court agreed and granted summary judgment. Applying an objective test for putative status, the court found that it was not objectively reasonable for Nancy Ceja to have believed that her marriage was valid.

We conclude that the court applied the wrong test. Section 377.60 requires only that an alleged putative spouse "believed in good faith" that the marriage was valid. We hold that this language does not establish an objective standard; rather it refers to the alleged putative spouse's state of mind and asks whether that person actually believed the marriage was valid and whether he or she held that belief honestly, genuinely, and sincerely, without collusion or fraud. In so holding, we disagree with In re Marriage of Vryonis (1988) 202 Cal.App.3d 712 [248 Cal.Rptr. 807] (Vryonis), which held that the statutory language incorporates an objective test."

I think the argument is irrelevant as to whether one or both parties agreed they were married. Obviously, issues of gay marriage would come to mind, which California explicitly is still fighting. The fact here is there is doubt as to whether or not there was honesty and sincerity. In fact in further questioning my sister said it was the husband who supposedly went to drop off the application both times, it was also him who hired the officiant which incidentally cant be found.

The reason why in my humble belief an Unclean Hands claim is that it is an affirmative defense by either the petitioner or respondent which precludes equitable relief which is what a putative marriage is entitled to. Equal share of property, spousal support etc. Therefore, as it Ceja case is currently pending appeal to Supreme Court of California, there is a real question of law. The argument of single issues is the best avenue and I agree with what previous posters are saying. The facts of this case are simple on the face of the argument. No marriage would tend most to believe there is no contract, but if the court decides to call it a putative marriage then the prenuptial would attach.

Here is a copy of that prenuptial names omitted

BACKGROUND

A. This Prenuptial AND OR Cohabitation Agreement is made between OMMITTED AND EDITED and OMMITTED AND EDITED who are contemplating marriage and or cohabitation of each to the other;
B. The parties intend for this Agreement to become effective upon their marriage or cohabitation pursuant to the laws of the State of California, including any Uniform Premarital Agreement Act, or other applicable laws, adopted by the State of California;
C. The parties wish to enter into this agreement to provide for the status, ownership, and division of property between them, including future property owned or to be acquired by either or both of them;
D. The parties further wish to affix their respective rights and liabilities that may result from this relationship, partnership, or otherwise domestic duty to one another;
E. The parties recognize the possibility of irreconcilable differences or other situations that may arise between them such as the unforeseen. Accordingly, the parties desire that the distribution of any property that either or both of them may own will be governed by the terms of this Agreement and, insofar as the statutory or case law permits, intend that any statutes that may apply to them, either by virtue of Federal or State legislation, will not apply to them with respect to property, support, or other equitable relief;
F. Each party has had the opportunity to retain their own lawyer and receive independent legal advice regarding the terms of this Agreement; both parties freely waive advice of independent counsel and enter this agreement with good faith and consideration.
G. The parties have exchanged financial statements providing full and complete disclosure of substantially all of the assets and liabilities property now owned or owing by each of them and voluntarily and expressly waive any other rights to disclosure of the property or financial obligations of each other beyond the disclosure provided;
H. The parties acknowledge that they have been provided with at least seven days to review this Agreement and obtain legal advice before signing;
I. Each party agrees and affirms the following:
1. THAT the parties did execute the Agreement voluntarily;
2. THAT this Agreement was not unconscionable when it was executed;
3. THAT both parties were provided prior to execution of the Agreement a fair and reasonable disclosure of the property or financial obligations of the other party; and
4. THAT he or she did have, or reasonably could have had, an adequate knowledge of the property or financial obligations of the other party.
5. BOTH parties waive legal counsel as to the EFFECTIVENESS OF THIS AGREEMENT.
6. BOTH PARTIES AGREE that the witness to this Shall testify in the event either party refutes this� agreement.
�
NOW THEREFORE in consideration of the upcoming marriage, and in consideration of the mutual promises and covenants contained in this Agreement, the parties agree as follows:
�
PROPERTY
�
1. Except as otherwise provided in this Agreement, such property gained before the marriage is the sole property of the individual whose name has been attached by debt or deed or other instrument. In the event of dissolution or divorce, OMMITTED agrees to relinquish any right he may have in any property under a 30,000 dollar valuation to be determined by current market value. Since he comes into the marriage without real property he agrees to waive any right to a claim of separate property which existed before the marriage. He further acknowledges that OMMITTED enters the marriage with property and income that he will not seek in the event of a dissolution, nullity, or divorce.
2. Unless a particular piece of property is explicitly documented as being owned by both parties, the following types of property will not be deemed as shared property:
a. any property owned by a party at the date of execution of this Agreement; and
b. any property acquired by a party through an inheritance. Including annuities, IRAs, pensions, or benefits which may be converted.
c. Any property that is gained by financing of one party which would reasonably include any item purchased by credit card, debit card of one individual, or funds earned by one party.
3. Except as otherwise provided in this Agreement, OMMITTED claims no property therefore there is nothing to claim and he agrees that any property OMMITTED now owns is her's separately. Any property not known currently to Ommitted is deemed waived.
4. In order to form a better marriage it is agreed that both parties will not insofar as can be reasonably foreseen purchase, finance, or in any other way gain property in both names. Further more both parties agree not to commingle finances. Any property that is gained during the marriage shall be the sole property of the purchaser and in the event of dissolution such property shall not be considered in any kind of consideration other than by whom the item or service was actually purchased by.
5. Nothing in this agreement will prevent or invalidate any gift, or transfer for value, from one party to the other of present or future property provided such gift or transfer is evidenced in writing signed by both parties.
6. Unless a party can reasonably show or demonstrate that he or she contributed with actual money to a piece of property gained during the marriage, where either party commingles jointly owned property with separate property, any commingled property shall be presumed to be jointly-owned property of the parties but shall not include any income of either party. This does not however include any income based purchases that are enjoyed by either party, but rather only items that both names have used to purchase an item.
WAIVER OF LEGAL FEES
7. In the event either party decides to otherwise end the partnership, marriage, or in another way dissolve their relationship, both parties waive rights to legal fees from the other. This waiver shall serve as notice that both party shall retain their own counsel and that they are separately liable for any legal fees or the cost of representation in the event this agreement is challenged or a dissolution proceeding or divorce or annulment proceeding is initiated by either party.

 

[rfabiano1]

part two

DEBTS
8. Except as otherwise provided in this Agreement, such debts will be and remain the debts of the party described and the other party will have no financial obligations with respect to paying back the debts unless either party seeks redress from the court to invalidate this agreement then either party will be entitled to the full debt.
9. Unless a particular debt is documented as being owed by both parties, the following types of debts will not be deemed as shared debts:
a. any debts already owing by one party at the date of execution of this Agreement.
b. Any future debts where both names are listed on such agreement or instrument or otherwise. Since there is a non commingle provision within this agreement. Any future debts and property are the sole responsibility of the individual with the only exception of Tax debts and liabilities that are payable to the Federal Government or State Tax Board.

10. In the event of a separation, if commingled each party will be financially responsible for 50% of any jointly-acquired or jointly-held debts, regardless of the initial or ongoing proportion of each party�s borrowed amount, unless the parties otherwise agree in writing thereafter.

CHILDREN

11. The parties further acknowledge that in the event of a separation, any rights and obligations of the parties relating to the children of the parties, including the issues of child support, custody and access, will be governed by Federal laws and/or the laws of the State of California.

12. The parties recognize the authority of the court to determine what arrangements are in the best interests of the children, and understand that court orders may affect the arrangement of the parties as stated in this Agreement.

SUPPORT
13. In the event that there is a separation of the parties, Neither party will be entitled to spousal support, alimony, or putative damages. In order to form a better marriage both parties agree that it is in the best interest of their marriage to not further burden either party in the event of annulment, dissolution or divorce. In addition any equitable relief governed by the laws of California shall include a copy of this agreement and shall be considered as a defacto waiver of interest or ownership or claim to one another.

(a) For purposes of this agreement Spousal Support is defined as any real money to be exchanged for the benefit of the other. Which will lawfully include money in the form of income earned by either party, property, or other convertible instruments including bank accounts, pensions, or interests earned. Such Support is waved by both parties.

(b)Both parties agree to waive alimony, palimony, or any other avenue in which to gain support from the other with the exception of support of a child, as it is defined under California law. This waiver can only be terminated by both parties agreement in writing. In the event of a child support under this section shall only be interpreted to mean support in the financial obligation of one party to the other on a equitable award that a court may award to make the parties whole for the purpose of child rearing. Such waiver has been thoroughly explained to both parties and both parties have been made aware fully that they have no right to any form of financial support of the other in the event of nullity, dissolution, or divorce or otherwise separation from the other. This includes any form of Temporary Support pending a final order in the event of divorce, annulment or dissolution. Such support is waived by both parties.

14. The parties realize that their respective financial circumstances may be altered in the future by changes in their health, the cost of living, their employment, their marital status, the breakdown of their relationship, or otherwise. No such changes shall give either party the right to seek additional support under any legislation, Federal or State. It is understood by each party that this Agreement represents a final disposition of all maintenance and support issues between them.

ESTATES AND TESTAMENTARY DISPOSITION
15. So long as the parties are together at the time of death of one of the parties, the parties desire to grant each other the following specific rights and release each other from all other claims and rights they may afterward acquire as a result of their cohabitation:
a. rights to death or survivor benefits under any government or employer pension plan.
whether by way of present or future legislation, Federal or State, or under the law of any jurisdiction.
16. Nothing in this Agreement limits or affects either party�s right to make specific or general gifts or bequests to the other party pursuant to any will or testamentary disposition in effect at the time of death of the deceased party.
17. Any employee IRA, 401K, or other employment related retirement fund shall be distributed to the other party only in the event of the death of one party. In the event of dissolution of marriage, annulment, or divorce both parties agree that they will not seek the others employment benefits.

SEVERABILITY
18. Should any portion of this Agreement be held by a court of law to be invalid, unenforceable, or void, such holding will not have the effect of invalidating or voiding the remainder of this Agreement, and the parties agree that the portion so held to be invalid, unenforceable, or void, will be deemed amended, reduced in scope, or otherwise stricken only to the extent required for purposes of validity and enforcement in the jurisdiction of such holding.

INTENTION OF THE PARTIES
19. Notwithstanding that the parties acknowledge and agree that their circumstances at the execution of this Agreement may change for many reasons, including but without limiting the generality of the foregoing, the passage of years, it is nonetheless their intention to be bound strictly by the terms of this Agreement at all times.

DUTY OF GOOD FAITH
20. This Agreement creates a fiduciary relationship between the parties in which each party agrees to act with the utmost of good faith and fair dealing toward the other in all aspects of this Agreement.

FURTHER DOCUMENTATION
21. The parties agree to provide and execute such further documentation as may be reasonably required to give full force and effect to each term of this Agreement.


TITLE/HEADINGS
22. The headings of this Agreement form no part of it, and will be deemed to have been inserted for convenience only.

ENUREMENT
23. This Agreement will be binding upon and will enure to the benefit of the parties, their respective heirs, executors, administrators, and assigns.

GOVERNING LAW
24. The laws of the State of California will govern the interpretation of this agreement, and the status, ownership, and division of property between the parties wherever either or both of them may from time to time reside. In the event there is a future conflict arising from this contract, the date of such agreement shall serve as the governing body for purposes of litigation.

TERMINATION OR AMENDMENT
25. This Agreement may only be terminated or amended by the parties in writing signed by both of them.

ORIGINAL AGREEMENT NOT REQUIRED
26. In the event this agreement is lost, stolen, removed, altered, or otherwise unavailable a copy of agreement shall serve as an original document. Which could include a photocopy stored in digital format, microfiche, or any other medium. BOTH parties agree that they shall retain a copy of this original agreement. IN the event there is a conflict which arises, BOTH parties agree that the WITNESS shall retain a copy of AGREEMENT and shall testify to its authenticity as IT was witness before him or her. BOTH parties waive notary.

IN WITNESS WHEREOF the parties have hereunto set their hands and seals as of the day and year first written above. BOTH parties agree they have read, understand, the above agreement. Further BOTH parties agree that this is legally binding on both parties. In the event that any of this agreement is held invalid under the laws of California, then the remaining part of the contract is still valid. BOTH parties agree they are of sound mind and that they enter this agreement freely without duress, influence, or other mitigating factors that may have compelled them to sign this agreement. BOTH parties have produced a copy of their IDENTIFICATION and has been satisfied to the WITNESS.

 

[Mnemosyne]

In response, I am not practicing law, I am merely researching the law in which to aid my sister. Obviously, I am not representing her in court. I am quite familiar with unethical practices. If it makes the legal minds happier lets say this case is hypothetical.

Sorry, we don't do hypotheticals. Good day to you.



(I am shocked...shocked!...that some senior didn't jump on this already. )

 

[Zigner]

Here is why Putative does not apply...

And THAT statement alone is why you should leave this to an actual attorney.

 

[Zigner]

Sorry, we don't do hypotheticals. Good day to you.



(I am shocked...shocked!...that some senior didn't jump on this already. )

There were larger issues to contend with