Edmond, OK asked in Divorce for California

Q: Will a backdated a declaration of marriage invalidate our marriage?

My husband had a wedding ceremony in California in 1994 to another woman, but no married license was applied for or turned into the state so that his "ex" could continue to claim widows benefits from her late husband. They lived together 13 years & then he left and moved to another state. Since there isn't common law in California, he assumed that he was not legally married to the other woman. We met & married in 2008. Now his "ex" has gone to a judge in California & requested a declaration of marriage. The judge issued the declaration all without talking to my husband or being informed that he is married to someone else. The judge dated the declaration back to 1994 which would pre-date our marriage, but when we filled out the marriage license and it asked if he was free to marry we believe he was since no such marriage existed at that time. What is the answer here. We get conflicting information from every lawyer we have contacted. We love each other & we want to remain together.

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1 Lawyer Answer
Scott Charles MacCabe
Scott Charles MacCabe
  • San Juan Capistrano, CA
  • Licensed in California

A: Your husband needs to take action in the court case involving the 1994 "wife." My understanding from you is that she knew she was not legally married to your husband, and she refrained from marrying your husband so she could receive benefits. You need to keep in mind that there there are theories of marriage beyond just simple common law to validate an otherwise imperfect legal marriage, such as the putative spouse theory under Family Code section 2251(which could apply to an otherwise not married "spouse" if he or she thought in good faith he/she was married and had nothing to do with the legal impediment that caused that marriage to be invalid) - but the 1994 woman cannot be a putative spouse because she did not act in good faith. Your husband needs to prove that the 1994 woman deliberately sabotaged the legal requirements for that marriage to be valid. She knew about valid marriages - she had been married before. So knowing the steps to take, she chose not to so that she could retain benefits as a widow of her earlier husband. With those facts proven, he should prevail in reversing that ruling but time is of the essence and he cannot afford any delay. If that ruling is not reversed, then his marriage to you is bigamous and thus void at its inception under Family Code section 2201. If that happens then you might need to consider other theories as well. Please retain a local lawyer and take action now.

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