2015: What Is a Putative Spouse in a Divorce or Legal Separation in San Diego?

There is no difference in the rights of a putative spouse in a divorce or legal separation. The requirements to qualify as a putative spouse are defined by the California Family Law Code which is used in San Diego Superior Court. Each case is different and unique and expert legal analysis is critical for the initial determination if putative spouse status can be requested in accord with the law. To have a putative spouse determination, the marriage must first be found to be void or voidable. Some examples of both are listed below. The spouses are blood relations such as parent/child or brother and sister. Another example is when one of the spouses was already married and did not divorce or receive an annulment prior to remarrying. This requirement is not necessary of one of the spouses is deceased. For San Diego, the legal age to marry is 18 years old so marriages when one of the spouses was not 18 years old when marriage occurred may be subject to challenge of validity. An additional example is when fraud occurred which was to obtain the other party's marriage consent however this requirement of fraud can be difficult to establish with evidence. There have been cases which claimed a marriage was voidable due to one spouse establishing that the other spouse only married to obtain an immigration benefit and never intended to be married. Both of one spouses is of "unsound mind" mental condition which may require evidence from a medical doctor.

Procedurally, a petition for nullity is filed claiming the marriage was void ab initio [void when entered into] or voidable. The spouse who is seeking the nullity is the petitioner. The spouse who is either agreeing or disagreeing with the request for nullity is the respondent. The respondent can agree that the marriage is void or voidable and not challenge the nullity. It is up to the San Diego Superior Court Judge to determine whether a marriage is void or voidable and whether or not to grant nullity. As California is a community property state and nullity restores the legal status of the spouses to single, this is not favored as a judgment and dissolution of marriage and legal separation is favored. If the respondent does not agree to nullity and believed that the marriage was in good faith and all other legal requirements met, then the responding spouse can ask for putative spouse status. Only the respondent can ask for putative spouse status and the good faith believe of marriage must be proved with evidence. In addition, as above, the putative spouse must have believed that the spouses were legally married and had no knowledge of any legal defects in the marriage. This can evidenced with direct testimony or documents or other admissible evidence in court. An objective test for a finding of putative spouse status may be required by Judge.

If the ruling is for nullity of the marriage based on a voidable or void marriage, then the parties are returned to the status of legally single and the marriage did not occur legally. As such, property which is in both names of the parties or in one name of the party but acquired during the marital period, may become an issue. The law is that property which is acquired during the marriage which would have been considered community property except for the void or voidable marriage, will be treated as community property. The technical term for this is “quasi marital property”. If real property or pensions or retirement accounts or other assets are in one spouse’s name only but acquired during the marriage, then a putative spouse may ask for division of this property even though not in their name.

The law firm of Doppelt and Forney, APLC can help with your nullity family law case as well as other family law cases involving legal separation, paternity and divorce. The law firm offers a free in-person or virtual consultation up to thirty minutes in their law office in Rancho Bernardo at Bernardo Center Drive just off the I-15. This consultation is private and confidential whether or not the firm is hired.