How is it possible that a couple could be married for a quarter of a century in good faith, yet the law prohibits spousal support? Further, how does this same legal doctrine ensure that a spouse will not be left high and dry?
What is Putative Marriage?
Bob and Diane have been married for more than 25 years. They have two lovely children, a nice home, picket fence — the whole nine yards. Back in the 1980s, the two fell in love and had what each thought at the time was a marriage ceremony in good faith. Yet, last week Diane received a Social Security check in the mail in which she was addressed by a different last name — as it turns out, by the name of her previous, undisclosed marriage from many a year ago. Bob separates from his wife a few months later and files a complaint for annulment.
A Few Questions & Answers will help us unpack the concept of putative marriage:
QUESTION 1: If Bob and Diane had a valid marriage ceremony, but Diane was already married at the time, what is the current legal state of their relationship?
ANSWER: Bob and Diane are no longer married upon Bob gaining actual knowledge of Diane’s previous marriage. This is codified in Nev. Stat. 125.290:
All marriages which are prohibited by law because of:
- Consanguinity between the parties; or
- 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 put it: “A marriage is void if either of the parties to the marriage has a former husband or wife then living.”
About twelve states recognize common-law marriages, (when a couple lives as married without a formal ceremony), and in such an instance as this, the couple would be considered common-law married. However, Nevada formally outlawed the recognition of common law marriages in 1943.
In Nevada, our hypothetical couple has what is termed under law as a putative marriage, which is defined as having two necessary elements:
(1) a proper marriage ceremony was performed, and
(2) one or both of the parties had a good-faith belief that there was no impediment to the marriage and the marriage was valid and proper.
QUESTION 2: Presuming Bob and Diane meet the necessary conditions for a putative marriage, how will a Nevada court allocate their marital property?
ANSWER: 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.
In fact, the court goes on 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.
It is essential to emphasize that Nevada courts will allocate community property in a putative marriage in much of the same manner they would for a valid marriage only if the parties married in good faith. Each spouse—specifically, previously-married Diane in our example—needs to earnestly believe s/he is legally permitted to (re)marry.
QUESTION 3: Presuming Bob and Diane meet the necessary conditions for a putative marriage, is Diane eligible for spousal support in Nevada?
ANSWER: No and the answer why is a little complicated.
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 law.
Below is the only Nevada statute regarding spousal support for a marriage annulment. An “arrearages” is a debt that should have been previously paid:
NRS 125.440 Judgment for arrearages in payment of support.
- 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.
No court would construe such a statute to infer that the Nevada Legislature desired spousal support in annulment resulting from a putative marriage. In fact, no state court across the land with an annulment support statute narrowly tailored like Nevada has extended the putative spouse doctrine to include spousal support. Only an act from the Nevada legislature will bring about an alteration in the law to help similarly situated spouses.
Stacy Rocheleau has practiced divorce law for 18 years, helping clients with uncontested divorces, legal separations, and contested divorces. Among her accolades, she was elected the best divorce attorney in her home State of Nevada for 2017 & 2018. www.rightlawyers.com.