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What to Know About a Putative Spouse’s Rights in California

If you believed that you were married — only to later discover that your marriage wasn’t valid — you may still have legal rights if you and your partner decide to go your separate ways. Under California Family Code § 2251, one or both parties may be able to obtain putative spouse status. This means that they will be subject to California’s community property and alimony laws just as if they were in a legal and valid marriage.

What is a Putative Spouse?

A putative spouse is one who has the good faith belief that they had been living with their partner as a legally married person. Specifically, good faith is determined subjectively by what a reasonably prudent person would believe in the same or similar circumstances. A judge might evaluate certain factors such as whether the couple held themselves out to be married, named each other on health insurance forms, and filed joint tax returns.

Cases involving putative spouses can occur where the couple got married, only to find out down the road that a divorce was not completed properly. It can also arise in situations where a couple has a religious ceremony in another country but fails to comply with California’s legal requirements for a valid marriage. If a marriage is void or voidable due to an honest mistake, a court may grant putative spouse status.

Alimony and Property Rights for Putative Spouses in California

If you are not legally married, you typically cannot make a claim against your partner for property division in California if you decide to part ways. However, you may still be entitled to have the court determine how your property and assets should be divided if you have putative spouse status.

Just as a spouse would be entitled to half of the property acquired during the course of their marriage, a putative spouse would also have the same community property rights.  In other words, absent any written agreement specifying otherwise, each putative spouse is entitled to 50% of the property acquired during the union under California’s community property laws. Debts would also be allocated equally between the parties.

Putative spouse status also allows the lower-earning partner in the union to sue for spousal support. A court may order that alimony should be paid in an amount and for a time frame deemed reasonable. Additionally, putative spouses may also have inheritance rights and be eligible to receive an intestate share of their deceased spouse’s estate — however, they must have first obtained putative spouse status from the court.

Child Custody and Support for Putative Spouses

Importantly, both parents of a child have a legal right to establish a relationship with them — regardless of whether their parents were legally married. Although California law presumes that a man who is married and living with the child’s mother is the biological father, parentage is not presumed in cases where the parties were not legally married. Critically, California does not have a putative father registry like other states, which allows an unmarried man to voluntarily acknowledge the possibility of paternity of a child.

If you are a putative spouse and have children with your partner, you may need to establish parentage to have parental rights. Once this is done, a judge can make orders regarding child custody, visitation, and child support. Parentage can be established by filing a voluntary declaration of parentage under California’s Parentage Opportunity Program — or by filing a petition against the man who the mother claims is the child’s biological father. In such cases, the purported father may request genetic testing or file an Answer.

Is an Annulment the Same as Putative Spouse Status?

An annulment can be obtained in California for several reasons. For instance, an annulment can be requested due to bigamy, incurable physical capacity, unsound mind, and fraud. An annulment can also be requested within four years of a spouse turning 18 if they were underage at the time of the marriage.

While there may be a putative spouse who is a party to the annulment, it’s important to understand that an annulment is not the same as putative spouse status. With an annulment, a marriage is deemed invalid from the outset. This means that unless there is a putative spouse, the court will not be able to divide your property, assets, and debts. A judge also won’t be able to award alimony.

Contact an Experienced Fresno Divorce and Family Law Attorney

If you believed in good faith that you were legally married, but learned that your marriage was not valid, you may be able to obtain putative spouse status. Offering reliable representation, The Law Offices of Rick D. Banks has been assisting clients in Fresno with a wide variety of divorce and family matters for more than 20 years — including those involving putative spouse status. To schedule a no obligation consultation, call (559) 272-8359.

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