Married for 25 years and now without spousal support?! About the annulment of putative marriages in Nevada

How is it possible that a couple can be married for a quarter century in good faith, and yet the law prohibits spousal support? Furthermore, how does this same legal doctrine ensure that a spouse is not left in the lurch?

There is a complicated concept in Nevada family law called putative marriage that can best be elucidated through an example:

Pritchard and Darcy have been married for more than 25 years. They have two lovely children, a nice house, a picket fence, the whole nine of them. In the 1980s, the two fell in love and had what each thought at the time was a bona fide marriage ceremony. However, last week, Darcy received a Social Security check in the mail addressing her with a different last name, as it turned out, from her undisclosed previous marriage name from many years ago. Pritchard separates from his wife a few months later and files for annulment.
Some questions and answers will help us unpack these concepts:

Number 1: If Pritchard and Darcy had a valid marriage ceremony, but Darcy was already married at the time, what is the current legal status of their relationship?

Answer: Pritchard and Darcy are no longer married when Pritchard finds out about Darcy’s previous marriage. This is codified in Nev. Statistic 125,290:

All marriages that are prohibited by law due to:

1. Consanguinity between the parties; Prayed

2. Either party having a former husband or wife living at the time, if solemnized within this State, is null and void without any decree of divorce or nullity or other legal proceeding.

As the Nevada Supreme Court put it: “A marriage is void if either party to the marriage has a former husband or wife who is living at the time.”

About a dozen states recognize common law marriages (when a couple lives as married without a formal ceremony), and in a case like this, the couple would be considered common law married. However, Nevada formally prohibited the recognition of common-law marriages in 1943.

In Nevada, our hypothetical couple has what is referred to under the law as a putative marriagewhich is defined by having two necessary elements:

(1) a proper marriage ceremony was performed, and

(2) one or both parties had a good faith belief that there was no impediment to the marriage and that the marriage was valid and proper.

number 2: Assuming Pritchard and Darcy meet the necessary conditions for a putative marriage, how will a Nevada court allocate their marital assets?

Answer: According to the Nevada Supreme Court, the “civil effects” of a bona fide marriage “flow” to each of the parties:

[A] putative spouse has many of the rights of a real spouse… The doctrine was developed to avoid depriving innocent parties who believe in good faith that they are married from being denied financial and status-related benefits of marriage, such as property division, pension and health benefits… Justice and equity favor the recognition of putative spouses when the parties perform a marriage ceremony in good faith and without knowledge that there is a legal or factual impediment to their marriage. marriage.

Indeed, the court goes on to say that because the putative spouse doctrine requires 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.

It is essential to emphasize that Nevada courts will allocate community property in a putative marriage in the same way that they would in a valid marriage. only if the parties married in good faith. Each spouse, specifically Darcy, who was previously married in our example, must seriously believe that she has legal permission to (re)marry.

Number 3: Assuming Pritchard and Darcy meet the necessary conditions for a putative marriage, is Darcy eligible for spousal support in Nevada?

Answer: No and the answer why is a bit complicated.

As the Nevada Supreme Court noted, other states are divided on whether a spouse can receive spousal support; Importantly, the courts that have allowed spousal support are in states that have extensive language in their statutes for spousal support in an annulment. . Nevada, on the other hand, has no such law.

Below is the only Nevada statute regarding spousal support for marriage annulment. A “delinquent” is a debt that should have been paid previously:

NRS 125.440 Judgment for support arrears.

1. When any of the parties in an action for annulment or declaration of annulment of a null marriage fails to pay any amount of money required by the judgment or order ordering its payment, the district court may issue an order ordering the registration of judgment for the amount of such arrears, together with costs and reasonable attorney’s fees.

No court would interpret such a statute to infer that the Nevada Legislature desires spousal support in the resulting annulment of a putative marriage. In fact, no state court in the entire country with a narrowly designed nullifying maintenance statute like Nevada has extended the putative spouse doctrine to include spousal support. Only an act of the Nevada legislature will cause a change in the law to help spouses in similar situations.