Do I have to file for a legal divorce if my spouse’s previous divorce was not final untilafter we were married?

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Do I have to file for a legal divorce if my spouse’s previous divorce was not final untilafter we were married?

I married my spouse 7 years ago and we have had many problems. We recently separated and I just found out that his divorce was not signed by the judge until 2 weeks after we were married. I have stayed this whole time because I thought that I had to because of my marriage and children. Am I considered married and have to get a divorce?

Asked on August 11, 2011 Alabama

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Ok well you have a really lot going on here.  First, the "official" marriage - and I mean the one in which you got a license and was officiated - is probably not considered valid.  He did not have the capacity to enter in to the marriage contract when you got married.  However, Alabama is one of those states that recognizes common law marriage.  Here are the requirements:

The requirements for a common-law marriage are: (1) capacity; (2) an agreement to be husband and wife; and (3) consummation of the marital relationship.

I would argue that you have subsequently validated the marriage under the common law rules and that you need to actually get a divorce.  I would advise it also because of the children involved.  You want the court to take a look at everything involving the kids.  Get help.  Good luck.


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