It is somehow possible to be married in good faith for years—decades even—and the law will still prevent a certain spouse from receiving formal support. This results from a complicated concept incalled a .
Simply put, when two people are married, when one is not legally permitted to do so, such an arrangement is called a putative marriage. You might be wondering how such a scenario could ever occur. Well, the most common example is similar to the Nevada case in which one spouse has a previous marriage from which s/he was not properly divorced, (while thinking in good faith that the previous marriage was over).
The couple is no longer married upon other spouse gaining actual knowledge of other’s previous marriage. This is codified in Nev. Stat. 125.290:
All marriages which are prohibited by law because of:
1. Consanguinity between the parties; or
2. Either of the parties having a former husband or wife then living, if solemnized within this State, are void without any decree of divorce or annulment or other legal proceedings.
As thewrote regarding the above statute: “A marriage is void if either of the parties to the marriage has a former husband or wife then living.”
A dozen states recognize common-law marriages, and in those jurisdictions, the couple would be considered common-law married. However, Nevada formally outlawed common law marriages in 1943.
In Nevada, what is termed under law as a putative marriage is defined as having two necessary elements:
(1) the couple took part in a formal marriage ceremony, and
(2) one or both of the parties had a good-faith belief that the marriage was valid and proper.
According to the Nevada Supreme Court, the “civil effects” of a marriage entered into in good faith “flow” to each of the parties:
[A] putative spouse is entitled to many of the rights of an actual spouse…The doctrine was developed to avoid depriving innocent parties who believe in good faith that they are married from being denied the economic and status-related benefits of marriage, such as property division, pension, and health benefits…Fairness and equity favor recognizing putative spouses when parties enter into a marriage ceremony in good faith and without knowledge that there is a factual or legal impediment to their marriage.
Counterintuitively, this opinion proceeds to say that because putative spouse doctrine requires to the parties to have a formal ceremony and elope in good faith, “the sanctity of marriage is not undermined, but rather enhanced” by the doctrine. In the thirty-something states that do not permit common-law marriage like Nevada, this is justified by similar means.
It is also important to point out that Nevada courts will allocate community property in a putative marriage in a similar manner that they would for a valid marriage only if the parties married in good faith. It is only fair and equitable that a person married in good faith should be entitled to as much community property as any other married spouse—yet justly—courts will not protect spouses that married in bad faith to take advantage of another.
As noted by the Nevada Supreme Court, other states are split as to whether a spouse may be awarded spousal support. Of significance, the courts that have permitted spousal support are in states that have broad language in their statutes for spousal support in an annulment. Nevada on the other hand, does not have such a broadly worded law.
Nevada has only one paltry statute, found in NRS 125.440(1) regarding spousal support for a marriage annulment:
When either party to an action for annulment or declaration of nullity of a void marriage, makes default in paying any sum of money as required by the judgment or order directing the payment thereof, the district court may make an order directing the entry of judgment for the amount of such arrears, together with costs and a reasonable attorney’s fee.
(For those that don’t speak as much Middle English as they used to, “arrearages” is a debt that should have been previously paid).
No reasonable Nevada judge will read the above law as the Nevada Legislature desiring spousal support in putative marriages annulments. In fact, no state court across the land with an annulment support statute narrowly tailored like Nevada’s has extended the putative spouse doctrine to include spousal support.
If people think the current law is unfair or unjust, it would be best to reach out to members of the state assembly and senate, as that is the only means to have this policy changed.