Monday, August 13, 2007

I Was Not Divorced When I Married My Second Husband, What Do I Do?

Dear Famularo & Associates, I just found out that the divorce that my husband filed six years ago was never finalized. The problem is that I remarried five years ago and my new husband and I have two children. Now we are going to get a divorce, but it looks like we were never legally married in the first place. What do I need to do? Thanks. Mary in Perris Dear Mary, Unwittingly, you have commited bigamy, which is grounds for annulment. To dissolve your second marriage, you have two options. It depends upon which outcome is most advantageous to you. Your first choice is to file an annulment of your second marriage. Since you were never validly married, you can ask the court to declare that your marriage was void by entering a judgment for annulment. This is probably not a good idea, especially if you have children or own a house, because there any many legal issues that will have to be resolved. Your second option is to proceed with the case and then ask the court to enter the divorce judgment with your first husband nunc pro tunc. This simply means that the court makes your first divorce final on a date before you married your second husband. Your second marriage then becomes a valid marriage. If you have to file for divorce a second time, the court will then treat the second marriage as a valid one. If you choose to file for divorce rather than the annulment with your second husband, you should know that you may be a "putative spouse." Simply put, you believed you were legally married after you attempted to enter into your second marriage. This gives you all the rights and protections as though you were validly married. Thus, all community property rights apply; i.e. you are entitled to an interest in your second husband's retirement, real property, etc. Your divorce is not going to be a simple one. You should seriously consider hiring a family law attorney to help you determine your best course of action and to help you through the complicated legal issues involved in your case.