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2012: Can You Establish a Marriage in California if You Have Co-Habited in an Out of State Jursidiction Permitting Common Law Marriage?

San Diego does not recognize common law marriages. In San Diego Superior Court, an action can be brought under the Marvin case which is called a Marvin Action or sometimes palimony but is normally in civil law court and not family law court. The issue of a “common law marriage” which was contracted in another state in San Diego being recognized as a marriage under California law for divorce or legal separation is complicated. If you are married and the marriage is recognized by San Diego Superior Court as a valid marriage, it does not matter where you were married. San Diego recognizes marriages from all states in the United States as well as every other country in the world assuming that the marriage was valid in that country. If the marriage was not valid in the state or other country, then filing for a “putative spouse” in the San Diego County Court Houses in San Diego, Chula Vista, El Cajon or Vista can still be maintained if the requirements for a putative spouse are met. This article will address the common law marriage issue.

San Diego, California Courts will recognize the validity of a common law marriage if the marriage was valid under the jurisdictional law of the parties where contracted. The first inquiry is whether the parties co habitated in an out of state jurisdiction. The second inquiry is whether the out of state jurisdiction recognizes common law marriages. The third inquiry is what the date of marriage would be. This is fact determined and can be an issue in many divorces or legal separations. The date of the marriage as well as the date of separation are the operative time periods for the determination of the division of assets and debts. As such, the date of marriage and date of separation can have a significant impact on the outcome of the case. The fourth inquiry is whether, if a valid marriage or common law marriage does not exist, a Marvin Action should be commenced. It is preferable to operate under the marriage theory for the one claiming a marriage and a marital relationship in most cases.

As the issue of whether a common law marriage is valid in the state where the parties lived together, a legal analysis must be completed by an attorney of that state. Some factual considerations are how long the parties lived together, did they hold themselves out as husband and/or wife and whether the law would validate the common law marriage. Again, an attorney outside San Diego must make this determination and assist in this procedure.

If you have questions regarding common law marriage outside of California being recognized in a San Diego Court or whether you are a “putative spouse”, please feel free to contact us for a confidential consultation.

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