My Husband Was Unaware that He Was Still Legally Married to His First Wife When He Married Me. Are We Married? Do I Need to Get a Divorce?

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“My husband married back in 1970. He then had an accident which left him in a coma. His wife went back to her family and did not bother to stay with him. He came out of the coma not realizing he was married. He married someone else who has since died. He then married again and divorced and then married me two years ago. Now the woman he married first has surfaced and refuses to divorce him, He has gone to live with her and walked out on me, where do I stand? He refuses to divorce me.”

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

In many States you do not need grounds for a divorce. All that is needed is separation and irreconcilable differences. Even in the States that have “fault” divorces, abandonment will eventually occur, which would provide grounds for divorce in a generic sense. However, your marriage may be void from its inception and if not void, then possibly voidable.

The issue you raise is whether a person involved in a bigamous marriage can prevent a dissolution. Under California Family Code Section 2201, “(a) A subsequent marriage contracted by a person during the life of a former husband or wife of the person, with a person other than the former husband or wife, is illegal and void from the beginning, unless: (1) The former marriage has been dissolved or adjudged a nullity before the date of the subsequent marriage. (2) The former husband or wife (i) is absent, and not known to the person to be living for the period of five successive years immediately preceding the subsequent marriage, or (ii) is generally reputed or believed by the person to be dead at the time the subsequent marriage was contracted. (b) In either of the cases described in paragraph (2) of subdivision (a), the subsequent marriage is valid until its nullity is adjudged pursuant to subdivision (b) of Section 2210.” So your marriage was void from the beginning unless he fits into the exception in paragraph 2201(b). Section 2210(b) would allow for the voiding of the marriage.

Under Family Code Section 2251, there would also be grounds for division of any quasi-community property acquired during the marriage, even for a marriage adjudged a nullity. If he refuses to file paperwork to end the marriage, and does not agree to the dissolution of the marriage, then the onus is on you to file it. If you do not want a divorce, it seems he would have the grounds to end the marriage, with or without your consent. As usual, your mileage and State may vary, so do consult a qualified family law attorney.

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Author: House Attorney

A house attorney has answered this question.

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