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

How is it possible that a couple can be married for a quarter of a century in good faith, but the law prohibits spousal support? Also, how does this same legal doctrine ensure that a spouse doesn’t get high and dry?

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

Pritchard and Darcy have been married for over 25 years. They have two lovely kids, a nice house, a fence, the whole nine. In the 1980s, the two fell in love and had what they both thought at the time to be a bona fide marriage ceremony. However, last week, Darcy received a Social Security check in the mail addressing her under a different last name, as it turns out, from her previous and undisclosed marriage name from many years ago. Pritchard separates from his wife a few months later and files a nullity suit.

Some questions and answers will help us unravel these concepts:

Question 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?

AnswerPritchard and Darcy are no longer married when Pritchard gained actual knowledge of Darcy’s previous marriage. This is encoded in Nev. Stat. 125,290:

All marriages prohibited by law due to:

1. Consanguinity between the parties; gold

2. Any of the parties that has an ex-husband or wife living then, if solemnized within this State, will be void without a decree of divorce or nullity or other legal procedure.

As the Nevada Supreme Court put it: “A marriage is void if either party to the marriage has an ex-husband or wife alive at the time.”

Approximately twelve 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 married in fact. However, Nevada formally prohibited the recognition of common-law marriages in 1943.

In Nevada, our hypothetical partner has what is referred to under the law as a putative marriage, which 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.

Question 2: Assuming Pritchard and Darcy meet the necessary conditions for a putative marriage, how will a Nevada court assign their marital property?

Answer: According to the Nevada Supreme Court, the “civil effects” of a marriage celebrated in good faith “flow” to each of the parties:

[A] The 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 of being denied financial and marriage-related benefits. state of marriage, such as property. division, pension and health benefits … Justice and equity favor the recognition of the alleged spouses when the parties celebrate 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 the putative spouse doctrine requires the parties to have a formal ceremony and abscond 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 assign community property in a putative marriage in the same way as they would for a valid marriage. only if the parties were married in good faith. Each spouse, specifically the previously married Darcy in our example, must seriously believe that they have legal permission to (re) marry.

Question 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 as to whether a spouse can receive spousal support; Importantly, the courts that have allowed spousal support are in states that have broad 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 a marriage annulment. An “arrears” is a debt that should have been previously paid:

NRS 125.440 Judgment for arrears in the payment of support.

1. When any of the parties to an action for annulment or declaration of nullity of an invalid marriage, fails to pay any sum of money as required by the judgment or order ordering the payment thereof, the district court may enter an order ordering the entry of judgment in the amount of such arrears, together with reasonable costs and attorney’s fees.

No court would interpret such a statute to infer that the Nevada Legislature desired spousal support in the annulment resulting from a putative marriage. In fact, no state court nationwide with a narrowly designed annulment alimony statute like Nevada has extended the putative spouse doctrine to include spousal alimony. Only one act of the Nevada legislature will alter the law to help like-minded spouses.