By: David A. Riggs
So, you think that you have been married to this wonderful person for oh so many years. Some of them good years. Some of them excellent years. Some of them not-so-good years. Then one day after a few years of marriage, you hear that your spouse may have still been married to someone else on the day you were married. And, for all you know, your spouse may still be married to that other person.
On the other hand, maybe your marriage is ending badly and you decide to do some digging. You find out that your about-to-be former spouse, who you knew had been previously married, got one of those shaky divorces from one of those countries where you can do a “mail-away” divorce.
OMG! What is going on here? Are you married? Are you not married? Do you seek a divorce? Do you seek an annulment?
The answer is that if either you or your current spouse were married to another person on the date you married your current spouse, the marriage is a bigamous marriage. Under Florida law, a bigamous marriage is void from its inception. Therefore, divorce is not the proper remedy because divorces operate on lawful marriages, not on void marriages.
If the marriage is found to be void, there is no alimony; there is no equitable distribution of assets and monies accumulated during the marriage; there is no equitable distribution of marital debts; and, the children born to the couple may be deemed illegitimate. In these circumstances, an annulment is needed.
An annulment is a judicial decree that says that your marriage was never lawfully entered and is, therefore, void and of no force and effect. Curiously, although there is a detailed statute in Florida that deals with the dissolution of marriage, there is no statute in Florida that deals with the annulment of marriages. The law of annulment depends on law that has evolved through the judicial, as opposed to the legislative, system.
Theoretically, since the marriage is void from its inception, you would not need a court order to prove the invalidity of the marriage. However, there is a very strong presumption in the law which supports the validity of a marriage if you obtained a Marriage License and went through a marriage “ceremony,” even if you were married by a Clerk of Court at a courthouse. Therefore, you really need to go through the process to obtain the annulment decree so that it is clear, for the record, that you were never legally married to this person.
As suggested above, if there are one or more children of this relationship, you need a determination of paternity by a court to establish that the father of the children is the person who thought he was the husband in what turned out to be a void marriage. This is because the children born of this void marriage are not presumed to be the children of the putative husband. Paternity of the children of this relationship has to be established by the Court. This is the opposite of children born to a lawful marriage, who are deemed the children of that marriage – even if, biologically, they are not. However, once paternity is established, the court will have to determine the appropriate amount of child support and create a Parenting Plan with a Timesharing Schedule.
Although a bigamous marriage may be void from its inception, it is possible that the “guilty” party to a bigamous marriage be prevented from claiming that the bigamous marriage is void, particularly if the intent is to deny the benefits of marriage to the innocent spouse. That is, the “guilty” spouse, meaning the one who was married to another at the time of the void marriage, may well be denied the opportunity to claim that this marriage was void.
Why? It’s a matter of fairness and equity. The legal theory is called “equitable estoppel.” The idea is that the “guilty” spouse should not be permitted to hide behind his or her own failure to lawfully end the prior marriage in order to deny the benefits of equitable distribution and alimony to the innocent spouse who may have had no idea that his or her spouse was still married to another.
Under Florida law, you cannot lawfully marry one person while you are still married to another person. It’s a crime! A Felony of the Third Degree. It’s called bigamy. And, you can end up in prison for up to 5 years! All in the name of love!
Let’s change the facts. Let’s say you are not married, but you meet the perfect person for you, but this “perfect person” turns out to be married to another person. Under Florida law, if you marry this person and on the date you marry, you know that this person is still the legal spouse of another person, you have committed a Felony of the Third Degree punishable by imprisonment for up to 5 years. And, maybe you thought being married to this person was punishment enough. Wrong!
While bigamy and bigamy-related criminal cases do not seem to be frequently prosecuted in Florida, bigamy claims do seem to occur from time to time in what would otherwise be divorce cases. You should seek the advice of a marital and family attorney with experience in these types of matters if you have questions about this.
David A. Riggs is a Boca Raton family law attorney, focusing his practice in the areas of marital and family law, probate litigation and guardianships. He can be reached at 561-241-3113.
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