A Putative Spouse is not a Bad Person

Like most states, California does not recognize what is known as a common law marriage. In a common law marriage, the parties are not legally married, but hold themselves up to everyone in the world as being married. And, in states that recognize common law marriages, if the parties separate, the court system will treat them the same as any legally married couple going through a divorce.

Because California does not recognize common law marriages, when couples separate after acting like married couples, the family court system will not provide the parties with the protection of the law. How they divide their assets and debts will be based solely on whose name the assets and debts are listed. No spousal support can be awarded, because they were never spouses. (Child custody and support issues will always be covered in family court regardless of the marital status of the parents.)

But what about the couples who believe they are married, separate and then discover that they were never in a valid marriage? It is unfair not to provide them the protection of the law, and California will help those parties.

In California, the family code recognizes what is known as a putative spouse. A putative spouse is a person who believed in good faith that he and/or she was legally married, but in fact was not. Please note that both spouses could be putative spouses if they both believed they were legally married. And, when the court determines that a party is a putative spouse, the court will treat the parties as if they were married, and give them the full benefit of the law.

Also note, that the family code states that a person must believe in good faith that he or she was legally married. The court will not determine whether the belief was reasonable, but whether the person truly believed it.

The California State Supreme Court defined the belief standard for putative spouse protection:

“The good faith inquiry is a subjective one that focuses on the actual state of mind of the alleged putative spouse. While there is no requirement that the claimed belief be objectively reasonable, good faith is a relative quality and depends on all the relevant circumstances, including objective circumstances. In determining good faith, the trial court must consider the totality of the circumstances, including the efforts made to create a valid marriage, the alleged putative spouse’s personal background and experience, and all the circumstances surrounding the marriage.

Although the claimed belief need not pass a reasonable person test, the reasonableness or unreasonableness of one’s belief in the face of objective circumstances pointing to a marriage’s invalidity is a factor properly considered as part of the totality of the circumstances in determining whether the belief was genuinely and honestly held.”

Lastly, please keep in mind that putative spouse status and legal protection afforded, can be very difficult to navigate, and competent legal help is highly recommended.

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