Putative Marriage Laws

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What Is a Putative Marriage?

A putative marriage is an informal marriage between a man and a woman, much like a common law marriage, where:

  1. Each believes in good faith that they are lawfully married, and
  2. They participate in some kind of ceremony.

Even though a putative marriage is not a formal marriage, it still is treated like one in many states.  

What Is an Example of a Putative Marriage?

A good example of a putative marriage is a couple marries, but then decides to divorce. However, neither spouse initiates divorce proceedings, under the mistaken belief that they did not have to. Shortly after, the woman meets another man, and they get married. Technically, the woman's new marriage is invalid. However, the new marriage may still be recognized by courts as a putative marriage because the woman and her new husband had a good faith belief they were lawfully married.

What Rights Does a Putative Spouse Have?

In most states, a putative spouse will have the same rights as a spouse in a formal marriage, including:

How Does a Putative Marriage Differ from a Common Law Marriage?

The primary difference is the need for a ceremony. Common law marriages do not require that both parties participate in some kind of ceremony to be married, while putative marriages do. Additionally, nearly every state provides for putative marriages, whereas common law marriages are only accepted by a minority of states. This is not to imply that a common law marriage will not be accepted by every state, but rather only a small number perform them.

Finally, a putative marriage may occur unilaterally, meaning one spouse may be allotted putative spouse benefits, and the other one will not. For instance, assume that in the example above, the wife was aware she was not divorced, and knew that she needed to be before she could legally marry her new husband. However, she goes ahead and marries the new husband anyway. She would not be considered a putative spouse, but the new husband would be; his belief that the marriage was valid was still in good faith.

Do I Need an Attorney?

If you think you have formed a putative marriage, are considering forming a putative marriage, or believe that you have property or support coming as a result of a putative marriage, it is highly recommended for you to find a family law attorney. They will be able to explain the issues to you and help protect your rights.

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Last Modified: 08-28-2014 12:06 PM PDT

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