Classic Mr. and Mrs. Smith

My Marriage isn’t Valid. What happens to our property?

In 1941, Alfred Hitchcock made “Mr. & Mrs. Smith“, a screwball comedy that airs from time to time on TCM or AMC with the beautiful Carole Lombard and Robert Montgomery (who later played TV Dad on the “Father Knows Best” series and real life Dad to Elizabeth Montgomery from the original Bewitched). The premise concerns a happily married couple discovering that their three-year marriage is invalid with predictable plot results. In real life, invalid marriages occur far more often than you might predict.

As Sacramento divorce attorneys, we have had many cases over the years where one party conveniently “thought” that their earlier marriage was already dissolved and “remarried” before a divorce was final (or even started). There are also many ways that a marriage ceremony itself can be invalid. We once had occasion to write a legal opinion on whether a Shamanic Ceremony in Costa Rica resulted in a legal marriage.

What happens to the parties’ property when their invalid marriage breaks up? If one spouse genuinely thought that the marriage was valid, community property rules can still apply. The California Family Code defines this concept as “quasi-marital property”.

“Quasi-marital” property occurs when the parties’ marriage is void or voidable for various reasons (usually bigamy or a fraudulent marriage of some kind – use your imagination). In these cases, the property that would otherwise be community property (if the marriage had been valid) is considered community property by the Family Court if either party or both parties had a subjectively good faith belief that the marriage was valid. “Either party” means that even the bigamous party could be entitled to this protection if s/he convinces a court that s/he thought the marriage was valid!

The overall quasi-community property estate is subject to the equal division rules. See Family Code §2251(a)(2); and Ceja v Rudolph & Sletten, Inc. (2013) 56 Cal.4th 1113.

I know this all sounds complicated, so if you have any further questions or need legal advice on your current divorce situation, please schedule a consultation with me.