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 in Nevada family law
called a putative
marriage.
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 Williams
v. Williams 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 the Nevada
Supreme Court wrote 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.
Need a lawyer? Start here.