Real family law questions from real people:
(This question has been reproduced from an article written for the Temecula Valley News.)
Dear Famularo & Associates:
I got married last June and everything was going just fine until I found out that I wasn't actually divorced from my first husband. Since I hadn't even told my second husband about the first, things aren't going so well and I guess he wants a divorce. I'm confused as to what I have to do at this point. If I was already married when I got married the second time, can I get an annulment? Will I be prosecuted for breaking the law?
--BC in Murrieta
Dear BC:
I am sorry to hear your husband wants a divorce. In answer to your question, "no." Your second marriage is not valid. This is a case of bigamy. In fact, you should not file for a divorce; you should file for an annulment based upon a prior existing marriage. Because you were already married to your first husband when you married your second husband, the second marriage is void and the court cannot grant you a divorce; it can only grant you an annulment. An annulment is a legal proceeding in which a marriage is declared invalid. Legally speaking, if an annulment is granted, the marriage never happened. This means that there is no community property to divide, and the court does not have the power to award spousal support to either party. The idea that the marriage never existed is really a legal fiction; both the marriage and the nullity proceeding will be public record, and anyone can access the information in the future.
Unlike a divorce proceeding, an annulment always requires a trial, even if the other party agrees the marriage should be annulled. Also unlike a divorce proceeding, there is no waiting period in an annulment. The court can declare the marriage did not exist without having to wait six months as the parties must do in a divorce. There are two types of annulments: those based upon void marriages, and those based upon voidable marriages.
An annulment based upon a void marriage would be are marriages that can never be valid, regardless of how much time has passed between when the parties were married and when the parties separated. Therefore, the marriage would be void and there is no time frame to file for an annulment. Because the marriage was never valid to begin with, for this type of situation, the court will never look at how long the couple was married in deciding whether the marriage should be annulled. The court will grant the annulment at any time based upon the fact that the marriage never existed.
Since you were the one who was "at fault," you will not have the same rights you would otherwise have had if this was a vaild marriage, however, you still may have those same obligations to your current husband. As such, it is very important that you consult with a family law attorney before taking any action. Finally, since you married your second husband in good faith, you cannot be prosecuted for bigamy.
--Famularo & Associates
