Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jan 31, 2020

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A putative marriage is a marriage where one or both parties did not realize that their union was not legal until they began the process of seeking a marital dissolution (i.e. divorce). The moment you discover that your marriage was never legal can faise serious concerns about your financial rights with regard to property division and spousal support.

If your relationship is particularly unequal in terms of financial strength, your higher earning spouse may try to bully you by claiming that because the marriage is void, you are not entitled to any of the usual protections of a legal spouse. Fortunately, many states provide protection for a spouse that is unwittingly deceived into believing that they are lawfully married.

Putative Spouse Doctrine

The putative spouse doctrine evolved to protect the financial and property interests of a person who entered into a void or voidable marriage believing in good faith that it was a valid marriage. If your state recognizes the innocent spouse doctrine, then you will be entitled to marital property rights the same as a legal spouse. You also have the same rights to spousal support, equitable property division, and attorney fees. This situation frequently arises because one party to the marriage did not complete all the technical requirements in terminating a prior marriage or because there was some other technical defect in the current marriage. The theory is that a spouse who believes in good faith they entered into a valid marriage should not be denied the same financial rights and protections as someone legally married.

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When a Putative Spouse Has Property Rights

You can only seek the protection and rights of a putative spouse in a putative marriage if your belief that the marriage was valid was in good faith. A number of states have laws modeled after the Uniform Marriage and Divorce Act (also sometimes called the Model Marriage and Divorce Act) codifying the innocent spouse doctrine or putative spouse doctrine by statute. The concept has been codified in California, Colorado, Illinois, Louisiana, Minnesota and Montana. The concept is also well established by case law in Nebraska, Washington, Nevada, Texas and Louisiana. Colorado and Montana are the only U.S. states to have both common law marriage and to formally recognize innocent spouse status. The putative spouse doctrine, referred to as “deemed marriages” are also acknowledged under the Social Security program. Essentially, even if you were not “legally” married, you will still be “deemed” married because you are an innocent spouse.

Getting Legal Help

If you are involved in dissolution of marriage (divorce) or legal separation and discover that your marriage is not legal, seek immediate legal advice from a qualified family law attorney. An experienced family law attorney will be able to successfully present your innocent spouse defense and protect your right to spousal support, property distribution and/or an attorney fees award. Failure to assert your right as an innocent spouse at the time of your divorce could result in a significant loss of your rights and protections.