tryingtodivorce

Getting divorce, marriage license never filed

7 posts in this topic

My ex and I started divorce proceedings but then found our marriage license (we were married in 1996) was never filed. 

1. Do we still have to continue the divorce paperwork? 

2. I changed my license to hyphenate his last name and want to hange it back. DMV says I need official documents. If I wasn't legally married how do I prove to the DMV I don't need (for lack of a better word) that name anymore? 

3. What implications does this have on future marriages? 

 

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The failure of the officiant to return the signed license to the county recorder following the solemnization of your marriage has no impact on the validity of the marriage.  If you don't want to be married anymore, you'll need to obtain a divorce from the court.  I have no idea what your third question might mean.

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Thank you. The county clerk said we were never married if they don't have record so my ex assumes we don't need to get a divorce (we are both planning to marry others in the future) 

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There is a sign in most court clerks' and county recorders' offices that says the clerks aren't permitted to give legal advice.  This is why.  :-)

 

While the lack of a filed marriage license means there's no "official" evidence of the marriage, you presumably have 20 years of tax returns filed under "married" status and a whole host of other documentation.  The law in (probably) every state provides that the inadvertent failure to comply with this sort of formality does not negate the validity of an otherwise valid marriage.

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According to my understanding most states recognize "Common Law Marriages" whereas you both have introduced each other as your spouse to others and have lived as a married couple for a period of two years or more, YOU ARE MARRIED! And as such would need a divorce decree issued by the appropriate Court to dissolve the marriage. You should check with the County Clerk's Office in the county of  your residence. Hope this was helpful.

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Contrary to scooterbum's suggestion, you cannot form a common law marriage in CA.  There are several options available.  1) you can purchase a License and Certificate of Declaration of Marriage from the county clerk in the your county of residence since it's been longer than a year fom the date of the marriage and then return it to the county recorder of the county where the license was issued.  The license and certificate shall be returned to the county recorder of the county in which the license was issued.2) You can do is just proceed with the divorce as is or  3) if you elect to proceed and he contests the validity of the marriage, you can assert status as a putative spouse since you obviously believed you were validly married. 
Given such a long-term marriage, just walking away carries important ramifications.  As a long term marriage, you may be entitled to spousal support, you are entitled to a share of his retirement and 1/2 the value of your home as well as the community property.  Depending on your age, you might also be entitled to collect social security under his earnings.  I'd suggest you speak with a local family law attorney.  

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35 minutes ago, scooterbum said:

According to my understanding most states recognize "Common Law Marriages" whereas you both have introduced each other as your spouse to others and have lived as a married couple for a period of two years or more, YOU ARE MARRIED!

 

Not sure why you're resurrecting a two month old thread, but every state "recognizes" a common law marriage that was formed in a state that allows for the formation of common law marriages.  However, most states do not allow for the formation of common law marriages.  And, in those states, "introduc[ing] each other as your spouse and . . . liv[ing] as a married couple [whatever that might mean] for [any particular] period of" time won't do it.  While the laws of the states that allow the formation of common law marriages vary a bit, the basic requirement in every such state is that a common law marriage is created, simply, by an agreement between two persons to be married.  That agreement is then evidenced by the couple holding themselves out to the world as a married couple.

 

The OP tagged this thread as relating to California, and California does not allow and, to the best of my knowledge, never has allowed, the formation of common law marriages, so raising the issue of common law marriages in a thread relating to California serves no useful purpose.

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