Articles Posted in Common law marriages

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Putative Marriage.jpgA putative marriage is a marriage that appears to be valid and is entered into in good faith on the part of at least one of the partners, but is legally invalid due to a technical impediment. The most common impediment to a marriage is an earlier undissolved marriage. In other cases, a marriage may be putative if it is between close relatives, underage persons, or people who are incapable of entering into a marriage contract because of mental incompetence. In some cases, a putative marriage has been created if problems arise with the couple’s marriage license, like forgetting to file it. If the putative spouse discovers the impediment and the couple undertakes steps to legalize their marriage within a reasonable period of time, then their marriage may be found valid. In some cases where the parties have a long union that both parties honestly believed was a valid marriage, a court may refuse to declare the marriage invalid and require a divorce to end the marriage. Although California law does not recognize a putative marriage as valid, it does have protections in place for the innocent spouse.
Good faith is an essential element of a putative marriage. Good faith means a bona fide belief that the parties can marry lawfully or were married lawfully. If the spouse becomes aware of the legal impediment to the marriage, then the question becomes how reasonable it is for the spouse to ignore the information and not investigate further.
A putative spouse is different than a statutory spouse, a common-law spouse, or a ceremonial marriage spouse, in that a putative spouse is not legally married. If the putative spouse can establish that they had a good faith believe that their marriage was valid, then they are entitled to certain protections under California law.
In 1994, the California legislature amended the putative marriage law to allow putative spouses to divide property acquired during the putative marriage. Under a traditional divorce, property acquired during the course of a marriage is considered community property. However, because a putative marriage is not considered valid under the California law, the property is considered “quasi-marital property.” With quasi-marital property, one-half of the property belongs to the putative spouse, and one-half belongs to the legal community. The share that belongs to the legal community is distributed to the legal spouse and the common spouse like any other community property. In other words, the legal community property, which is half of the marital property, is again divided so that the putative spouse receives half and the other spouse receives half. As a result, the putative spouse will receive three-quarters of the property acquired during marriage.
In the event putative spouses have children together California family law applies. Child custody and support will be determined under California law, as they would in a valid marriage. If the parties are unable to come to an agreement amongst themselves, they can utilize the legal system, taking advantage of the traditional litigation path or using the alternative dispute resolution options offered.

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Cohabitation in CaliforniaToday, many couples choose to live together, but do not wish to get married. Some do it for legal reasons, where they are still married and do not want a divorce, and some choose not to marry simply because they do not believe in the institution of marriage.
Most married couples do not realize that, by marrying, they entered into a legal contract. The contract defines the rights and obligations they owe to one another as a married couple. Unsurprisingly, unmarried couples can also enter into contracts to establish rights and obligations. While these contracts can be referred to by many names, they are most commonly called nonmarital agreements or cohabitation contracts.
In 1976, the California Supreme Court issued a decision establishing nonmarital agreements. The decision allowed unmarried couples to enter into written and oral contracts covering rights often associated with marriage, such as property rights. In addition, an unmarried couple may create a nonmarital agreement through their actions, without ever writing anything down or specifically speaking about it.
Nonmarital agreements are not right for every unmarried couple; generally, they are appropriate when the couple expects to stay together for a long period of time and a significant amount of money, property, and debt will be accumulated. Even those couples opposed to the institution of marriage should strongly consider a nonmarital agreement to protect their interests, and to ensure that if the relationship ends the property distribution is orderly. Older couples may wish to use a nonmarital agreement to ensure that their property is distributed the way they wish.
Just as every relationship is different, so is every nonmarital agreement. The nonmarital agreement should be tailored to your relationship, and include the level of detail you want. Most nonmarital agreements should contain items discussing:

Acquired property – How should ownership of items acquired during the relationship be determined? Should it be 50% or should the property belong solely to the person who bought it?

Previously owned property – Many couples prefer to solely own the property they owned when they entered into the relationship, but memorializing it can help cut down on confusion.

Expenses – It may be helpful to include information regarding which partner will pay for expenses. You have several options, including an even split, a proportional split based on income, or pooling money in a joint account.

Separation or death – It is important to include information on how property should be distributed if the relationship ends or one partner passes.
While the California courts have upheld nonmarital agreements, they may refuse to enforce an agreement in some circumstances. If the nonmarital agreement appears to include consideration for sexual services it may not be enforceable. For example, if one partner agrees to share his or her income in return for the other partner’s love and companionship, a court may decline to enforce the contract for requiring sexual activity. In addition, some courts may not enforce an oral agreement, because it can be difficult to determine the terms of the agreement without written evidence.