Void and Voidable Marriages and the Meaning of “Dicta”

Wife’s Nevada marriage to Husband No. 2 while still marrited to Husband No. 1 is void from its inception, whether or not the second marriage was terminated by a judgment.  Wife’s marriage to Husband No. 3 after her marriage to Husband No. 1 was dissolved determined to be valid.

In Irmo Seaton (unpublished opinion filed November 8, 2011), the following very interested facts occurred.  The following facts are an exerpt from the State Bar of California family law case studies: 

Patricia and Richard (H-1) married in 1973 and separated in 1987.  Before divorcing H-1, Patricia began dating Henry (who soon became H-2).  She “broke up” with Henry in 1988 when she met Jeffrey who eventually became H-3.

While dating Jeffrey, and only ten days after getting a restraining order against Henry, and while still married to Richard, Patricia agreed to meet with Henry for dinner.  She said Henry was “very nice” and agreed to meet him in Reno to talk about their relationship.  Their dinner included alcohol and before the evening was over, they ended up at a wedding chapel where Patricia and Henry were married.  Patricia, it must be said, falsely stated in her marriage license application that her marriage to Richard ended in April 1988.

Patricia regretted her decision when she woke up the next morning.  She managed to reach an attorney who advised her after a 40-minute conversation that there was no need to have the Nevada marriage annulled because the marriage to Henry was void because she was still married to Richard.

Patricia disclosed all this to Jeffrey about a week later.  She said Jeffrey, an attorney, confirmed that Patricia’s Nevada marriage to Henry was void.  Patricia said she accepted Jeffrey’s advice and did not consult any other attorney concerning the matter.  Jeffrey denied Patricia’s account, saying he did not discover Patricia had married Henry until sometime in 1989.

Patricia’s marriage to Richard was dissolved in December 1988 but her marriage to Henry was never dissolved or annulled.  Jeffrey’s marriage to his wife was dissolved in April 1991.  Patricia and Jeffrey married in June 1991.

Seventeen years later, in 2008, Jeffrey filed a petition to annul the marriage.  Patricia responded with a request for dissolution.  Following a trial in 2009, the trial court nullified the marriage on the ground that Patricia was still married to Henry when she married Jeffrey.  The trial court reasoned that, even though Patricia’s marriage to Henry was void, Nevada law required a legal proceeding to terminate a void marriage before it can be said to be over with.

Since an annulment proceeding was required legally to sever Patricia’s marriage to Henry, her marriage to Jeffrey was void.  The trial court also found Patricia’s story to be “objectively incredible” and ruled she was not a putative spouse because she did not believe in good faith that her marriage to Jeffrey was valid.  Patricia appealed, and the Court of Appeals reversed the trial court’s orders.  Patricia argued her marriage to Henry was void even in the absence of an annulment decree terminating her marriage to Henry – thus making her marriage to Jeffrey valid.  The Court of Appeal agreed with Patricia: no judgment was needed adjudicating her marriage to Henry void (although  it is usually highly advisable to obtain such a decree). 

Generally, a bigamous marriage is “illegal and void from the beginning.” (See Family Code § 2201(a)(1)).  In California, a void marriage is invalid for all purposes from the moment of its inception, whether or not a court has entered a judgment of annulment .  (Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1114.)  Examples of when void marriages occur include when one spouse is already married, like we have in this case, or when an incestuous marriage occurs.  These are the only two situations under the California Family Code (sections 2200 and 2201) where the marriage is void from the outset.  The other legal bases for a nullity of marriage are the result of “voidable” marriages (i.e. marriages that can be adjudicated to be annulled, but are not automatically void). 

In other words, a voidable marriage is valid for all purposes until it is judicially declared a nullity, and may only be challenged by a person who is entitled by statute to assert it is void.  (Estate of Gregorson, supra, 160 Cal. at pp. 26-27.)  A judgment of nullity relates back and erases a void or voidable marriage and all its implications from the outset. (Sefton v. Sefton (1955) 45 Cal.2nd 872, 874.)

Nevada law on void and voidable marriages is relevant because Patricia married Henry in Nevada prior to marrying Jeffrey in California.  Whether Patricia’s marriage to Jeffrey was void depended entirely on whether she was validly married to Henry under Nevada law when she married Jeffrey.

A Nevada statute unambiguously provides that a marriage is “void without any decree of divorce or annulment or other legal proceedings” when either party has a “former husband or wife then living.”  (N.R.S., § 125.290.)  But notwithstanding the plain words of the statute, Nevada decisional law includes “dicta” (when appellate judges mention something in their opinion but for which the opinion is not based)  from the Nevada Supreme Court that suggests an annulment proceeding is nevertheless required legally to sever the marital relationship.  (Williams v. Williams (2004) 120 Nev. 559, 564.)  And here the trial court, relying on Williams, declared Patricia’s marriage to Jeffrey a nullity because she never formally dissolved her marital relationship with Henry before marrying Jeffrey.

The Court of Appeal agreed with Patricia that the statement in Williams is only “dicta” because there, neither party disputed that the marriage was void.  The argument was about whether Nevada would adopt the putative spouse doctrine (the “putative spouse” doctrine is where a person seeks to be identified as a spouse for legal purposes even though he or she was never actually married to another person).  The Court of Appeal concluded, “Because this statement was unnecessary to the determination of the questions involved in the case, it is dicta and not controlling.”

The Court of Appeal also agreed with Patricia’s assertion that the California trial court could have declared Patricia’s Nevada marriage to Henry void without even acquiring personal jurisdiction over him.  “In Nevada, as in California, a bigamous marriage is void, not merely voidable at the option of one of the parties to the marriage.  (McClintock v. McClintock (2006) 122 Nev. 842, 845.) … Because the fact of the marriage with Henry is material to the validity of the marriage between Patricia and Jeffrey, the trial court could have [and should have] declared the marriage with Henry void in this collateral proceeding.”  The judgment nullifying Patricia’s marriage with Jeffrey was reversed.

This case hinged on a very minor legal point, which is whether “dicta” in a court of appeal case was law or not.  The trial court in this case found that the words of an opinion constituted law, whereas the Court of Appeal found that the words of an opinion consituted “dicta” and not law.  Interestingly, the validity or invalidity of a marriage between two people depended on whether language in a case was binding on the general population or not.  Our attorneys are experienced litigators and are available to answer your questions today concerning your nullity or divorce case.  Feel free to contact us directly at (949) 955-9155 or email us.

Residency Requirements for Divorce (Including New Rules for Same Sex Partners)

Irvine Divorce Attorneys and Family Law Specialists

The law has recently changed with respect to residency requirements for same-sex marital partners to divorce in the State of California.  Below is an outline of the residency requirements as they exist, generally, along with comments regarding the new changes effective January 1, 2012.

Residency Requirements Generally. In order to obtain a divorce in California, one spouse must be a resident of the State of California for six months and of the county where the proceeding is filed for three months preceding the filing of the petition.  Either party may file for dissolution (divorce) as long as one party satisfies the requirements.  It is important to note that if the residency requirements are not satisfied and neither party contests residency, any defect in the requirement is waived.

The six-months/three-months residence prerequisite applies only to marriage dissolutions.  There is no residence requirement for filing for legal separation.  Therefore, if neither spouse satisfies the residency requirement but wish to obtain a divorce in California, and will later meet the requirements, a spouse can file for legal separation and later amend the petition.  This tactic could be used if one party intends to fulfill the six-months/three-months prerequisite eventually but would like to start the dissolution process immediately.  Once the requirement is satisfied, the spouse may amend the petition or the response to request dissolution instead of legal separation.

Domestic Partnerships. There is no minimum residence prerequisite to dissolve a domestic partnership that was established in California.  Domestic partners who register their partnership with the California Secretary of State thereby consent to California jurisdiction to end the partnership as well.   However, the residency requirements still apply in California if the domestic partnership was established outside of California.

Same Sex Marriages. For a brief period in 2008, California granted marriage licenses to same-sex couples.  Since November of 2008, California has banned such licenses. A problem arose when these married same-sex couples moved out of California to states that did not recognize their marriage and therefore would not grant them a divorce.   The couple no longer satisfied the California residency requirements and could not obtain a divorce in the state where they currently resided.

In 2011, the Domestic Partnership Equality Act was passed.  The Act authorizes a judgment for dissolution or legal separation of a marriage between persons of the same sex to be entered if the marriage was entered in California and neither party resides in a state that will dissolve the marriage.  On January 1, 2012, this exception to the California residency requirements became effective.

When contemplating a divorce or legal separation, it is imperative to consider where to file the petition. Dissolution cases involve difficult and life changing decisions. Because of the complexity of this issue, it is best to hire an attorney who is experienced in such matters. The attorneys at Wilkinson and Finkbeiner, LLP are Certified Family Law Specialists and have successfully handled a variety of dissolution cases and can assist you with your matter. Feel free to call today at (714) 667-0045 for your free initial consult. You can also send us an email inquiry.

With the Uncertain Stock Market, is your MSA Safe?

Irvine Divorce Attorneys

Post-Judgment Family Law Specialists

Have you reached a marital settlement agreement which includes assets such as a retirement plan?  The value of a retirement plan has the ability to fluctuate in value as changes in the stock market occur. 

In a dissolution case, the parties have the ability to reach a Marital Settlement Agreement, or MSA, that can be incorporated into a judgment. In a recent case, Husband and Wife separated in 2007 after a 17-year marriage.  Within two months of their separation, a stipulated judgment of dissolution of marriage was entered.  Through this stipulation (agreement), the parties agreed that Wife would be awarded her retirement plan and that both spouses would have a community (shared)  property interest in Husband’s retirement plan.   Husband’s retirement plan was to be divided in a manner which equalized the distribution of the community assets and liabilities.

The parties agreed on a value for Wife’s interest in Husband’s plan in a judicially supervised settlement conference.  Wife’s interest in Husband’s retirement plan was valued at $405,000, minus one-half the community interest in her retirement plan.  The formal order stated that Wife’s interest was a defined number not to be affected by change due to market conditions nor accumulated interest.

In 2008, Wife attempted to enforce the parties’ settlement agreement and Husband moved to set the order aside on the ground that, due to the downturn in the stock market, the value of his plan had reduced significantly.  Unfortunately for the Wife, the court agreed and, in order to prevent a windfall to Wife, reduced the value of Husband’s retirement plan for the purposes of their agreement.

Wife appealed the reduced value of the retirement plan and the Court agreed that setting aside the agreement because of the change in value was an abuse of discretion.  The Court considered Family Code 2123, which provides that a judgment may not be set aside “simply because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the division of assets or liabilities to become inequitable, or the support becomes in adequate.”  The legislature enacted this provision partly out of concern for circumstances that would discourage settlement. Absent this policy, courts would operate less efficiently and the parties’ settled expectations would be disappointed.  From a public policy standpoint, it is best to encourage parties to settle their own disputes outside of court.

When contemplating or participating in a divorce or dissolution case, it is imperative to review all retirement plans, property interests, investments, and agreements between spouses. Dissolution cases involve difficult and life changing decisions. Because of the complexity of this issue, it is best to hire an attorney who is experienced in such matters. The attorneys at Wilkinson and Finkbeiner, LLP are Certified Family Law Specialists and have successfully handled a variety of dissolution cases and can assist you with your matter. Feel free to call today at (714) 667-0045 for your free initial consult. You can also send us an email inquiry.