My Fiance Was Married Twice Before, but One Was Common Law. What Needs to be Done to Make Our Marriage Legal?

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‘My fiancee was married when she was 17. It was a common law marriage. She never got divorced, then married again at 21. She is now 40 and has finally gotten the divorce from her first husband. Since she was never legally married to the second man but the marriage is on record does she need to get a divorce in order to marry me. We live in Clinton county Iowa. Thank you. ‘

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This is a very interesting question, and one that would make a great law school exam question. First, you need to determine if she was *really* married at 17. There are very few states that still have an actual common law marriage statute on the books, and there are also very few states where someone under the age of 18 can get legally married. We have to imagine that the intersection of states that would find a valid common law marriage for someone under 18 is very small – if it exists at all.

If it turns out that in fact it is impossible for someone to be deemed common law married if they are under 18, then for you that means that in fact her “second marriage” is really her first marriage, and she would need to get a divorce.

If, in fact, it turns out that there *is* common law marriage in the state in which she was, purportedly, common law married, then the question becomes one of whether the marriage was “voidable”, or even void, due to her age or other factors. If it was void, then, again, there was no “first marriage”, and her second marriage is legitimate, and a divorce needs to be filed. If her “first marriage” was “voidable”, then it’s possible she has taken action (including marrying someone else) that could be deemed voiding the marriage.

This all turns on whether, in fact, she was truly married at 17 under common law, and this is something that needs to be determined before any other steps are taken. And yes, this means that even though she got a “divorce” from her first husband, that divorce may have been entirely unnecessary, and also may not have had any real effect on her legal status.

The bottom line is, even though you say “she was never legally married to the 2nd man”, that really isn’t clear at all, and I suspect that she may never really have been legally married to the *first* man, and that she will need a divorce from the second man.

This is actually very important to determine and clear up, because what you *don’t* want to have happen is to have that second husband come after her after she has been married to you for years, with a claim for half of everything she has earned or acquired during *your* marriage.



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Author: House Attorney

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