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Common law marriage - want a divorce, but the spouse is already married

Discussion in 'Divorce, Separation, Annulment' started by Smirdule, Mar 15, 2008.

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  1. Smirdule

    Smirdule Law Topic Starter New Member

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    It is odd situation me and my current wife are in. My ex-girlfriend of 5 years filed a petition for a divorce claiming we had a common law marriage. I am confused as to how she could file for divorce when she did not do it in the past three years she has abandoned me, and now claiming she was still "married" to me last year? And how does it affect my current marriage which is formal?
     
  2. lwpat

    lwpat Moderator

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    If the court finds there was a common law marriage, then your current marriage is not valid. You will have to get a divorce and then remarry.

    You must answer her complaint within the time limit by denying that there was a common law marriage and possibly use SOL or laches as another defense. Your post is confusing but the SOL has to be plead in your answer. You need an attorney immediately.

    She will have to prove the elements of a common law marriage. The attorney will go over them with you.
     
  3. Smirdule

    Smirdule Law Topic Starter New Member

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    Thank you for your response. I understand I will need an attorney, and it is bad my current marriage is threatened by this. Would you explain please what SOL defense means? I looked into the elements of the marriage, and I think we met only one criteria. But I also understand I will have to prove it to court. So will she.
     
  4. seniorjudge

    seniorjudge Super Moderator

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    The ex-girlfriend wants to prove you were married.

    She may or may not have a case.

    One of the defenses you should allege is that she waited too long to file for divorce.
     
  5. Smirdule

    Smirdule Law Topic Starter New Member

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    Thank you for the response.
    I hope we would be able to prove that she had enough time to file it prior to my marriage, but failed to do so. That would be good, would save me lots of aggravation.
    And I have her email where she congratulates me for getting married. Also, she has been involved with different men for the past three years, and we lived separately. This is such a mess, as there are two states involved, and I am not yet a resident of the state she filed the divorce. How I read the divorce laws of that state, I need to be a resident for 6 months. All I can do now is to wait and see what an attorney will tell to all the facts.
     
  6. Duranie

    Duranie Moderator

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    First of all only about 10 states actually recognize common law. What state are you in?

    Common law is more than just living together. You both have to declare that you were in a husband and wife relationship. Just because she is claiming common law doesnt mean yuo were in one. It is more than just living together. You would refer to each other as your spouse, share domestic partner benefits, etc..
     
  7. Scooterdog

    Scooterdog New Member

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    Then the other 40 should be tried for treason, by the constitutions. Common law has been around for what?? around 1100 years? Please. If you beleive that, then strap on them shackles. Remember:
     
  8. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Scooterdog - whether or not we like what the law is, common law not only exists but I have to deal with it regularly.

    I don't mind opinion or feeling that the law can be frustrating and a complete anachronism. But I think your comment doesn't help a great deal with this thread, does it?

    Please note that we don't censor posts here unless they clearly violate our terms of use and the safety and comfortable environment of other members. Let's try to keep it that way.
     
  9. Scooterdog

    Scooterdog New Member

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    I believe I was pointing out a legal fact, not opinion to the following:

    I'll retract my post, and issue an appology when I see some fact to that statement.

    That's not even good fiction.
     
  10. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    I was talking about the part that is no longer there. Let's move on.

    Getting to the point of the thread, let's talk about common law which we can talk about constructively. I think there is a misunderstanding here. I don't think Duranie was talking about no common law existing in 40 states. Duranie may have been talking about the recognition of common law marriage where only a limited number of states do recognize it, most notably California. Most famous is the Marvin Mitchelson palimony case. Perhaps we can ask Duranie to clarify if he gets a chance.

    From Wikipedia:

    Michelle Marvin claimed that Lee Marvin, who was still married at the time they began living together, had promised to support her for the rest of her life. In the end, in Marvin v. Marvin, the California Supreme Court ruled that Michelle Marvin had not proven the existence of a contract between herself and Mr. Marvin that gave her an interest in his property. Thus, the common law rule applied to the situation without alteration, and she took away from the relationship and the household what she brought to it.

    The Court went on to explain that while the state abolished common law marriage in 1896, California law recognizes non-marital relationship contracts. These contracts may be express or implied, oral or written--but they must be provable in any case. The contract may also provide for a sexual relationship as long as it is not a contract for sexual services. Eventually, the California Court of Appeal ruled that since Triola and Lee Marvin never had any contract, she was entitled to no money.
     
  11. Scooterdog

    Scooterdog New Member

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    How can a statue "abolish common law"? There is the problem. It can't. Only "people" let it happen.
     
  12. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    I think this is semantics. The state can enact a statute which supersedes the common law.
     
  13. Scooterdog

    Scooterdog New Member

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    Professor: I"m trying to be respectfull, but wow. The constitution is a common law instrument. So, by your statment, the state can inact law to over-ride the constitution. Sure, if "we the sheeple" let it happen.


    I know from personal research I have a RIGHT to ignore unconstitutional laws/statutes/etc..., Right or wrong?
     
  14. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    You're mistaken and you're letting your emotions get the better of you. This is the last post I want to make here since we're getting off topic. I invite you to start another thread on this topic elsewhere. The constitution is not the same thing as common law. I read a good explanation in Wikipedia:

    Common law as opposed to statutory law and regulatory law.
    This connotation distinguishes the authority that promulgated a law. For example, in most areas of law in most jurisdictions in the United States, there are "statutes" enacted by a legislature, "regulations" promulgated by executive branch agencies pursuant to a delegation of rule-making authority from a legislature, and common law or "case law", i.e. decisions issued by courts (or quasi-judicial tribunals within agencies). This first connotation can be further differentiated, into (a) laws that arise purely from the common law with no express statutory authority, e.g. most criminal law and procedural law before the 20th century, and even today, most of contract law and the law of torts, and (b) decisions that discuss and decide the fine boundaries and distinctions in written laws promulgated by other bodies, such as the Constitution, statutes and regulations. See statutory law and non-statutory law.


    With regard to your statement that you have a "right" to ignore laws that are unconstitutional, that only applies in retrospect. You have no way of knowing whether a law will be deemed unconstitutional until after a court rules as such. Until that time, it is highly inadvisable to disregard laws because you believe they don't apply to you because, unless you're fortunate enough for the times when a law is stricken down as unconstitutional, you're deemed to be in violation of the law and can be arrested. You can call people sheep, but I'd wager that many are intelligent enough to know what battles to pick.
     
  15. Smirdule

    Smirdule Law Topic Starter New Member

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    It was a very interesting discussion to follow, and was helpful to me to understand what I believe in and why it is difficult to accept my situation. I need to get a lawyeer to see where my case stands. Thank you all.
     
  16. HatesTyranny

    HatesTyranny New Member

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    I do not believe that you need a license (permission from the government that you pay for, for something that you already have a right to do) to get married. If I were going to get married again, I would have the ceremony, but not the license. Like if I want to have an other kid, I will make the baby but not the birth certificate. So my question would be, did you ever have a common law wedding? You don't have a common law marriage just because ONE of you says you do.
     

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