Legal Question in Family Law in California

I was married (my 2nd marriage) and later found out that my first marriage divorce had not been completely final (even though i signed and thought things were done). Time passed and we never went through a new ceremony or signed any paperwork or anything and now my 2nd marriage (can I call it that?) is ending and she wants a divorce. My questions are, do we actually need to file for divorce if we were not actually legally married? What about her requests for alimony and child support?


Asked on 8/25/11, 3:58 pm

2 Answers from Attorneys

It is indeed your second marriage. The marriage does not fail to exist just because it is illegal and void. The proper procedure, however, is not to file for divorce. You file for a judgment of nullity of the marriage. In fact once the bigamous nature of the marriage is known, you really MUST file for nullification. Otherwise you are creating a big mess with creditors, insurance, etc., anything that is handled differently or has different options and rights for married people. The paperwork and the procedures for divorce and nullification are nearly, but not quite, identical. In fact you start them with the same petition form but check some different boxes. As for alimony and child support, the obligation to pay child support is completely independent of marriage. People who are never married are ordered to pay child support if they split up, and the law is exactly the same on custody and support as if they were married. The same is true for you. Spousal support is a little different. When a void marriage is nullified for bigamy, the innocent spouse may under some circumstances elect to treat the void marriage as a putative marriage. In that case property is divided and support ordered as if the marriage had been valid. If the innocent spouse elects to treat the marriage as entirely void, then community property claims and spousal support claims are waived. Where the bigamous marriage has gone on for years, a putative marriage order is generally considered much more appropriate.

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Answered on 8/25/11, 4:24 pm
Anthony Roach Law Office of Anthony A. Roach

You are going to have to file for annulment. Your second wife, who rightfully had reason to believe that you were divorced from your first wife, is called a "putative" spouse. You are still going to have issues such as division of property and support.

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Answered on 8/26/11, 8:35 am


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