Is my marriage legal? What to do?

[aftertherain]

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

I apologize in advance that this will probably get pretty long, so thanks for reading

As of last week I had not heard from my daughter's father since October 2010. He was living with me in New York when I got pregnant in 2007 and then I left him when I was 5 months pregnant to move to CA with family. He has only met my daughter once, and that was in February 2009. She was ten months old; she is now almost 4.

He has never paid a single penny for our daughter and sent a present worth about $50 for her first birthday, but absolutely nothing else, not even cards. He just does not care.

Then suddenly today he called me, after getting my number from Facebook.
He has not called me in fifteen months. He has not made any contact to ask about his daughter. But he can call when he wants something.

He called to ask if I would sign divorce papers. When we were living in NY we had gone down to the courthouse and gotten married. But I was 17 at the time and the minimum age of consent was 18. So I always figured it wasn't a legal marriage and didn't matter, I have never thought of myself as married or referred to him as my husband. But he said he checked with whomever, and he can't get married now to his new girlfriend because he's already married to me.

I never thought our marriage was legit and legal because we had to somewhat forge the marriage license application since I was underage. I am honestly a little scared about the possibility that it was legal because I don't want him to have ANY right whatsoever to MY daughter. I've also heard that the law says that kids conceived during marriage are presumed to be the husband's, so my 15 month old son would be presumed his as well?

I've never been to court for anything. Do I need to get an official order saying that I have sole custody? Are his rights automatically terminated because he hasn't been in her life for the past 4 years? Where do I even begin with going to Court? I have no idea what to do. IF I do need to go to court, is it going to cost me money? Should I get something saying I have full custody BEFORE dealing with the divorce or possibly annulment, or is there any chance he might be awarded visitation if we divorce?

Thanks for any input

 

[Ohiogal]

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

I apologize in advance that this will probably get pretty long, so thanks for reading

As of last week I had not heard from my daughter's father since October 2010. He was living with me in New York when I got pregnant in 2007 and then I left him when I was 5 months pregnant to move to CA with family. He has only met my daughter once, and that was in February 2009. She was ten months old; she is now almost 4.

He has never paid a single penny for our daughter and sent a present worth about $50 for her first birthday, but absolutely nothing else, not even cards. He just does not care.

Then suddenly today he called me, after getting my number from Facebook.
He has not called me in fifteen months. He has not made any contact to ask about his daughter. But he can call when he wants something.

He called to ask if I would sign divorce papers. When we were living in NY we had gone down to the courthouse and gotten married. But I was 17 at the time and the minimum age of consent was 18. So I always figured it wasn't a legal marriage and didn't matter, I have never thought of myself as married or referred to him as my husband. But he said he checked with whomever, and he can't get married now to his new girlfriend because he's already married to me.

I never thought our marriage was legit and legal because we had to somewhat forge the marriage license application since I was underage. I am honestly a little scared about the possibility that it was legal because I don't want him to have ANY right whatsoever to MY daughter. I've also heard that the law says that kids conceived during marriage are presumed to be the husband's, so my 15 month old son would be presumed his as well?

I've never been to court for anything. Do I need to get an official order saying that I have sole custody? Are his rights automatically terminated because he hasn't been in her life for the past 4 years? Where do I even begin with going to Court? I have no idea what to do. IF I do need to go to court, is it going to cost me money? Should I get something saying I have full custody BEFORE dealing with the divorce or possibly annulment, or is there any chance he might be awarded visitation if we divorce?

Thanks for any input

Though you committed fraud, you are still married but your marriage is voidable. All of the children you have had since marrying him would be legally considered HIS children. Do custody during the divorce -- and disestablish paternity of your 15 month old son at the same time. His rights are NOT automatically terminated. Not at all.

 

[mistoffolees]

Though you committed fraud, you are still married but your marriage is voidable. All of the children you have had since marrying him would be legally considered HIS children. Do custody during the divorce -- and disestablish paternity of your 15 month old son at the same time. His rights are NOT automatically terminated. Not at all.

Did they file taxes as married? If so, they may have an additional problem to resolve - and it might be easier to just get a divorce. If they filed taxes as married, OP should speak with an attorney unless someone here can give a clear answer.

BTW, how does that work? If a couple is married and files taxes as married and then later gets the marriage annulled or voided, do they have to go back and re-file their taxes? Or is it sufficient that they were married at the time of filing?

 

[LdiJ]

Did they file taxes as married? If so, they may have an additional problem to resolve - and it might be easier to just get a divorce. If they filed taxes as married, OP should speak with an attorney unless someone here can give a clear answer.

BTW, how does that work? If a couple is married and files taxes as married and then later gets the marriage annulled or voided, do they have to go back and re-file their taxes? Or is it sufficient that they were married at the time of filing?

Its sufficient that they were married at the time of filing.

 

[Ohiogal]

Upon a second reading, you may have issues if you moved and didn't tell him where you were living with his child or make sure he had contact information for YOU. Don't say he knew your sister's neighbor's ex boyfriend's info and could have gotten you that way. If he just got your phone number that day and called you that shows he wasn't wasting time on contacting you from the time he got your number. Now, you seem to want to say he abandoned the child -- but if you never filed for support and you didn't make sure he always had your contact information by providing it to him, that is going to be difficult to prove.

 

[aftertherain]

I never filed taxes as married. I've never answered any sorts of questions as Married, because I didn't think I was married. I moved to CA in November 2007 and he had my address and phone number. That address is a PO Box and it is STILL active, he can send something there now if he wants. He sent me a couple letters in early 2008, so I know he had the address at some point, if he lost it that's on him. He also had my phone number at the time and we were talking semi-regularly for 2.5 years, until October 2010. I always had the same number, but HE didn't and changed his number every couple of months. I just got a new number in January 2011 and I sent him a short note with a pictures of our daughter saying that I had changed my #, in case he was wanting to call. I sent it to the only address I had for him and it was returned, he doesn't live there now. I was never trying to keep our daughter from him, I've been open with him.

ETA: And I do actually have an open Child Support case against him. But no order and I've never received anything because the CS office couldn't locate him because his # and address are always changing and he rarely works legally.