What it Takes To Be A Putative Spouse in California and Its Benefits Part 3-The Effect of a Putative Designation

Hon. Mark Juhas

Los Angeles County Superior Court Judge Mark A. Juhas has presided in family court since he was appointed to the bench in 2002. He also chairs the California Commission on Access to Justice and teaches extensively in the areas of family law, self-represented litigants and access to justice.

This, the third and final installment of this article, was promised quite some time ago. As the old adage goes: "it is better late than never."¹ In this segment, the discussion comes full circle and the possible result arising from a nullity is fleshed out. As discussed earlier, marriages are either valid, void, or voidable. When a valid marriage ends, the law is clear, the property is equally divided, and spousal support is awarded. But, what happens to a spouse’s property and spousal support rights if a marriage is declared void? Recall that if a marriage attempt is legally ineffective, the marriage is annulled, and the parties are returned to their status as unmarried persons.² Simply, unless one or both of the parties are putative spouses under the law, there are no property rights following annulment of a marriage.

But what happens in the fairly common situation where one spouse finds out several years after marriage that their spouse was already married to someone else when they got married? How do they untangle a legally non-existent marriage? In that set of circumstances, the parties may have acquired substantial assets and returning them to an unmarried condition would result in a significant financial hardship. Both the legislature and the judiciary have recognized this inequity and have created the equitable remedy of putative spouse. As will be seen, while the policy behind putative relationships has been clearly developed in the law, how it all resolves in a real-world situation is extremely fact dependent.