What is a Putative Spouse in a Divorce or Legal Separation in Los Angeles, CA?

Hossein Berenji, Aug 11, 2021

California does not recognize common-law marriages. Therefore, parties must be legally married or in a domestic partnership for a family court to have jurisdiction over their divorce or family law issue.

If a couple separates after years of living together without being legally married, it is up to the couple to divide their debts and assets. California community property laws would not apply. However, the family court always retains jurisdiction over child custody and child support matters.

What happens when one spouse or both spouses believe they entered a legal marriage or domestic partnership? Will the court intervene in those cases?

What is a Putative Spouse?

A putative spouse believes in good faith that they have been living as a married person with their partner. California law recognizes the rights of putative spouses related to property division, spousal support, and other issues that could be decided through a:

In some cases, a marriage may be void or voidable for legal reasons. For example, a legally married person cannot enter into another legal marriage until the court dissolves their first marriage. On the other hand, a spouse who is unaware of the first marriage may believe in good faith that they are legally married.

In other cases, the couple may have made an honest mistake. For example, a couple may get married and later find out that an annulment or a divorce form was not completed. If so, their marriage would be void even though neither party initially committed fraud. In that case, both parties might be granted putative spouse status.

Another example might be a couple who gets married in another country but fails to ensure that the marriage is legal under California law. Couples married in religious or private ceremonies must ensure that they follow through with the legal requirements if they want their marriage to be legal.

California Family Code §2251 states that the court can declare that the party or parties who believed in good faith that they were married have the status of a putative spouse. Good faith is measured by what a reasonably prudent person would believe, given the same or similar circumstances.

The courts examine the facts and circumstances of the marriage to determine if the party or parties had a good faith belief they were married. For example, did they file joint tax returns stating they were married, named each other as a spouse on health insurance forms, and told people they were married?

Why Would It Be Important to be Granted Putative Spouse Status?

If your marriage is not legal, you cannot sue your spouse for spousal support and property division claims. However, if the court grants you putative spouse status, the property and assets acquired during your invalid marriage are treated as community property.

Furthermore, being treated as a putative spouse means that you are eligible for an intestate share of your partner’s estate. If you are granted putative spouse status, you cannot inherit from the estate unless your partner had a will naming you as an heir.

Putative spouse status also allows you to sue your partner for spousal support. The court could order your partner to pay alimony in any amount and for any duration that the court deems just and reasonable.

If your partner refuses to negotiate a settlement and you sue your partner, you can also petition the court for an award of attorneys’ fees. The award of attorneys’ fees for an innocent spouse could cover the entire cost of filing the divorce petition.

What Should I Do If I Discover My Marriage Is Not Legal?

There is no substitute for legal advice from an experienced family law attorney. The issues related to the putative spouse statute can be confusing. Proving that you had a good faith belief that your marriage was legal could be challenging, especially if your spouse argues that you knew all along that you were not legally married.

Hiring a divorce attorney can help you overcome the legal hurdles of being declared a putative spouse. With the help of a lawyer, you can build a case that your spouse committed fraud or misrepresented the facts in a way to make you believe that you were married.

However, proving you believed you were legally married is just the first hurdle. You must then fight for a fair share of community property and spousal support.

In addition, if you have children together, there could be contested issues related to child custody and child support. An attorney can guide you through the legal matters so that you can get past this difficult situation.