Board Certified Family Law Specialist Matt Arnold answers the question: “How should I prepare if I intend to file for divorce in the near future?”
Unsurprisingly, marriage is seen as a nonnegotiable prerequisite to divorce. A court cannot grant a divorce and divide marital property without an underlying marriage. Though this would seem to make sense, there are instances where though a marriage may not be legally valid, it is recognized by courts as having occurred. We have previously discussed issues surrounding common law marriage, but this post deals with something a little different: the putative marriage doctrine.
The case at issue was recently heard by a Wisconsin appeals court. In Xiong v. Vang, a wife filed for divorce from her husband after more than 30 years of marriage. The two are originally from Laos, but fled to Thailand as refugees. They were members of the Hmong minority, a group persecuted at the time across the region. According to the wife, the two were married in a Hmong ceremony that occurred at their refugee camp in 1980. It was officiated by her uncle and followed by another Hmong ceremony, known as a string ceremony, three days later.
Decades passed, the couple eventually migrated to the U.S., had four children and began to grow apart. The husband had a girlfriend (who he eventually married) and the wife finally decided to end the marriage, filing for divorce in 2014. At the time, the husband responded by arguing that there could be no divorce as the couple had never been married. He argued that though a ceremony did take place back at the refugee camp, it was to celebrate their cohabitation, not their marriage.
The wife brought forward substantial amounts of evidence to dispute this argument. She had relatives come forward and explain that the marriage was coerced after her husband paid the woman’s family money. Brothers, uncles and other relatives who attended the ceremony say that it was clearly a wedding, as cohabitation is not acceptable in the Hmong community and would thus never be celebrated. The wife also brought forward immigration papers, joint tax returns and property records, all showing the two listed as a married couple.
Despite the seemingly overwhelming evidence to the contrary, the husband continued to argue that they were only partners, not husband and wife. He said he was not sure how else to fill out taxes and other forms, so simply chose married as an easy alternative. He also claimed that the marriage was invalid under Thai law. Given that the two were refugees, no marriage would have been recognized under Thai law. The invalidity of the underlying marriage, according to the husband, should mean that Wisconsin now refuses to grant a divorce.
The justices on the court of appeals disagreed. The panel explained that just because a foreign marriage is not valid does not mean it cannot be recognized by a Wisconsin court. They rejected the argument that a marriage invalid under Thai law must not be acknowledged in the U.S. The Court instead decided that there had been a putative marriage. This satisfies the test for a putative marriage because it was solemnized in proper form, meaning it was conducted appropriately in the Hmong community. Finally, it was celebrated in good faith by one or both parties. This second requirement was fulfilled by showing that the families of both parties believed the two had been married.
The husband’s last ditch effort to sway the appeals court was to argue that recognizing an invalid marriage would be tantamount to allowing common law marriage, something that is not recognized in Wisconsin. Again, the Court disagreed, saying that putative marriage is not like common law marriage. In putative marriages, one or both parties believed they were validly married. In common law marriages, there is no such belief, with both parties understanding that they never took steps to formally marry.
If you find yourself facing a complicated family law matter, then you need the help of experienced family-law attorneys in Charlotte, North Carolina who can help guide you through the often confusing process of divorce. Please contact Arnold & Smith, PLLC today at (704) 370-2828 or find additional resources here.
The family law practice group at Arnold & Smith, PLLC includes two Board-Certified Family Law specialists and several attorneys with many years of family law experience that are committed to providing a powerful voice to individuals facing the often-tumultuous issues in this area of law. The range of issues our family law clients may be facing include pre- and post-nuptial agreements; separation agreements; post-separation support; child support (both temporary and permanent); absolute divorce; divorce from bed and board; military divorce; equitable distribution of assets; child custody (both temporary and permanent); retirement benefits and divorce; alimony and spousal support; adoption; and emancipation. Because this area of the law is usually emotionally charged and complicated, the family law attorneys at Arnold & Smith, PLLC act with the utmost dedication to ensure that each client understands his or her options, and then act to achieve the best result possible for that client’s particular situation.
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