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I was married for about 1 and one half year. We filed for non
contested divorce in Nov. 2003 and the divorce will be final about 6
weeks from now.
I have reason to believe that he was still legally married, in Europe,
when we were married. It looks like he had a separation instead and
the divorce was not final until a few months after we were married.
This is all stuff that has been told to me, by a reliable source, but
I have no proof and no documentation.
I would like to have my marriage legally annulled but I'm not sure
what will happen if I do this. I can file the papers requesting an
annulment, but I have no proof of the prior marriage. I'm not so sure
my ex-husband would admit to or agree to this. I also don't really
want to get anyone in any trouble. If I were to ask for an annulment
and somehow prove that he was still married would he be in any
trouble? Would he be prosecuted? Would I be in trouble?
Just as an aside, I don't think there are any immigration issues here.
We never applied for a greencard. His employer sponsors a visa for
him and I have no involvement with that. Marriage is not a condition
of his employment or his visa.
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I was married for about 1 and one half year. We filed for non
contested divorce in Nov. 2003 and the divorce will be final about 6
weeks from now.
I have reason to believe that he was still legally married, in Europe,
when we were married. It looks like he had a separation instead and
the divorce was not final until a few months after we were married.
This is all stuff that has been told to me, by a reliable source, but
I have no proof and no documentation.
I would like to have my marriage legally annulled but I'm not sure
what will happen if I do this. I can file the papers requesting an
annulment, but I have no proof of the prior marriage. I'm not so sure
my ex-husband would admit to or agree to this. I also don't really
want to get anyone in any trouble. If I were to ask for an annulment
and somehow prove that he was still married would he be in any
trouble? Would he be prosecuted? Would I be in trouble?
Just as an aside, I don't think there are any immigration issues here.
We never applied for a greencard. His employer sponsors a visa for
him and I have no involvement with that. Marriage is not a condition
of his employment or his visa.
There aren't enough practical differences between a divorce and an
annulment in California to make it worth any extra effort. Either way,
you come out of it single. Either way, you go through property
settlements and all the other hassles (California has "putative
spouse" and "quasi-marital" or "quasi-community" property rules that
make an annulment of a void marriage little different from a divorce
in that respect).
You could get an annulment for bigamy, but I'm not sure why it would
be worth your while if the divorce is going to be final in six weeks
anyway. It would take longer than that to get the annulment.
California is reluctant to prosecute for bigamy in the absence of
guilty knowledge: see People v. Vogel (1956). So there's little risk
to him and less risk to you that you'd end up defending a bigamy
charge. But it's another can of worms that there's just no point in
opening.
--
Not a lawyer,
Chris Green
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I was married for about 1 and one half year. We filed for non
contested divorce in Nov. 2003 and the divorce will be final about 6
weeks from now.
I have reason to believe that he was still legally married, in Europe,
when we were married. ...
I would like to have my marriage legally annulled but I'm not sure
what will happen if I do this.
If your soon-to-be-ex-husband was still married at the time of your
marriage, you do not need any court order for your marriage to him to
be void. It is not voidable, but void (unless you cohabited in some
common-law-marriage jurisdiction subsequent to his divorce becoming
final, or otherwise fell into the scope of the "rule of marriage
validation" which says that a marriage, whether valid at its start or
not, is validated by domicile and cohabitation in a jurisdiction that
would recognize the couple as married. (The rule of validation is not
an absolute one, and is ignored by many; but it is widely applied in
fact.)
What you would need to do to prove the nullity of your marriage (and
hence the irrelevance of the divorce proceeding) is to prove the fact
of the first marriage. The burden of proof then shifts to your ex to
prove the fact of divorce, more especially since he must have lied on
the marriage license (since if he admitted to the prior marriage, most
jurisdictions would have required presentation of a copy of the
divorce decree.)
There is often an issue as to whether an apparently interlocutory
decree of divorce entitles the parties to remarry. In olden times,
when some states (California?) prohibited remarriage of the "guilty"
party for some period of time, the issue of the remarriage of that
party in another state during the period of prohibition occasionally
came up.
You might ring the consulate of the country of your ex's nationality
and ask how marriage records can be researched in that country. In
Switzerland or in Japan, for example, a marriage and/or divorce would
appear on the family register in the citizen's home commune. Some
countries may have computerized records. In others you will need to
know the place of marriage and the approximate date, or at least the
year.
Once you have those facts, you can petition the court dealing with
your divorce to declare that you are not legally married, and to
dismiss the divorce proceeding on that ground. Then you have your
"annulment". Such action could impede any claims you (or he) have to
community property rights, alimony, etc. It would probably not make
any children of the void marriage illegitimate, but that depends on
the law of the specific jurisdiction involved. (In England, if one
spouse believes the marriage to be valid, the child is "legitimate".
On the other hand, some US jurisdictions have abolished the concept of
legitimacy. But as you didn't mention pregnancy or children I assume
none of this applies to you.)
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Christopher Green wrote:
There aren't enough practical differences between a divorce and an
annulment in California to make it worth any extra effort.
I tend to agree -- but IF you (the OP) gets an annulment,
you'd have to refile all past tax returns as single.
This could either be an advantage or a disadvantage.
--
This account is subject to a persistent MS Blaster and SWEN attack.
I think I've got the problem resolved, but, if you E-mail me
and it bounces, a second try might work.
However, please reply in newsgroup.
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[snip]
Once you have those facts, you can petition the court dealing with
your divorce to declare that you are not legally married, and to
dismiss the divorce proceeding on that ground. Then you have your
"annulment". Such action could impede any claims you (or he) have to
community property rights, alimony, etc.
California has "putative spouse" rules that put the parties to a void
marriage in the same position they would have been in had there been a
valid marriage. Property division, spousal support, and the like are
then settled accordingly.
While these rules have been notoriously applied in "palimony" cases,
we are likely to see them argued on a large scale if the large number
of "gay marriages" recently licensed and solemnized are ruled void.
--
Not a lawyer,
Chris Green
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"Arthur L. Rubin" <ronnirubin@sprintmail.com> wrote:
Christopher Green wrote:
I tend to agree -- but IF you (the OP) gets an annulment,
you'd have to refile all past tax returns as single.
And though the OP said it wasn't an issue in this case, if someone
obtained a green card based on a marriage that has been anulled, the
green card can be revoked.
Stu
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California has "putative spouse" rules that put the parties to a void
marriage in the same position they would have been in had there been a
valid marriage. Property division, spousal support, and the like are
then settled accordingly.
While these rules have been notoriously applied in "palimony" cases,
we are likely to see them argued on a large scale if the large number
of "gay marriages" recently licensed and solemnized are ruled void.
That may be true, but:
1) I assume it can't be used to benefit the guilty party to a bigamous
marriage, and
2) Neither community property nor quasi-community property should be
susceptible of invocation. Or else federal tax law would have to honor
the income splitting implications (there is no federal property law,
and only in one instance that I can think of has federal law
pre-empted community property rights: where a US citizen living in a
community property country (Spain, Mexico, Bolivia ...) marries a
non-resident alien and then tries to exempt her half of his US civil
service salary from US tax. (They changed the law after one guy got
away with that in the courts.)
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Christopher Green wrote:
I tend to agree -- but IF you (the OP) gets an annulment,
you'd have to refile all past tax returns as single.
This could either be an advantage or a disadvantage.
I think it's permissive rather than required. The cases in which it
was required (such as the one leading to RR 76-255) involved sham
marriages (or, in the Rinehart/Yeager case, a sham annulment). An
advice letter (http://www.irs.gov/pub/irs-sca/0202001.pdf) has it
"taxpayers may be entitled to amend prior year returns".
It might be to the OP's advantage, but that has to be weighed against
the expense, time, and difficulty of proving the marriage void [and
the (probably) small risk of a bigamy charge].
--
Chris Green
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Christopher Green wrote:
I tend to agree -- but IF you (the OP) gets an annulment,
you'd have to refile all past tax returns as single.
This could either be an advantage or a disadvantage.
Actually it would be quite an advantage. Filing single this year
means I owe less taxes. If I am correct in my research, then filing
single in the past two years would have resulted in less taxes and I
can file amended returns for a refund.
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In article <i8fr40dvotils6m054sd0oc3ff3mthvs0a@4ax.com>,
Arthur L. Rubin <ronnirubin@sprintmail.com> wrote:
I tend to agree -- but IF you (the OP) gets an annulment,
you'd have to refile all past tax returns as single.
Do you? Weren't you married on December 31, 2003?
Now, if the marriage is found _void_ (e.g. due to bigamy), that would
be different.
Seth
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Seth Breidbart wrote:
In article <i8fr40dvotils6m054sd0oc3ff3mthvs0a@4ax.com>,
Arthur L. Rubin <ronnirubin@sprintmail.com> wrote:
Do you? Weren't you married on December 31, 2003?
If accurate, I missed that. Make it "one past tax
return".
--
This account is subject to a persistent MS Blaster and SWEN attack.
I think I've got the problem resolved, but, if you E-mail me
and it bounces, a second try might work.
However, please reply in newsgroup.
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tamsuraiya@yahoo.ca (Tam) wrote:
cj.green@worldnet.att.net (Christopher Green) wrote
That may be true, but:
1) I assume it can't be used to benefit the guilty party to a
bigamous marriage, and
That's my understanding.
2) Neither community property nor quasi-community property
should be susceptible of invocation.
May well be. But the courts will award the innocent party proper as
if there had been community property.
Stu
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I was married for about 1 and one half year. We filed for non
contested divorce in Nov. 2003 and the divorce will be final about 6
weeks from now.
I have reason to believe that he was still legally married, in Europe,
when we were married.
.....
I would like to have my marriage legally annulled but I'm not sure
what will happen if I do this. I can file the papers requesting an
annulment, but I have no proof of the prior marriage. I'm not so sure
my ex-husband would admit to or agree to this. I also don't really
want to get anyone in any trouble. If I were to ask for an annulment
and somehow prove that he was still married would he be in any
trouble? Would he be prosecuted? Would I be in trouble?
Thank you all so much for the replies.
My reason for requesting an annulment is financial.
My ex has decided that he will file taxes married filing separate this
year with several nice itemized deductions. I am left with no legal
choice but to file msf with itemized deductions. Which would be great
if I had any bleeping deductions! The only deductions I can take are
my CA state taxes, leaving me with a sky high tax bill.
I have decided to go ahead and file for the annulment, but I have no
proof. I asked him and he said he will not help me by providing a
copy of his marriage and divorce papers.
Does this now shift the burden of proof to me? If I file for an
annulment based on prior marriage will the court say that I must
provide proof? Or will they shift the burden to him and make him come
up with the documents?
I am also researching how to obtain the documents from his home
country, but with a limited ability to read and write in his language
I can get a general idea of how to get the documents but I am not sure
about the details, such as exact wording for a letter. Perhaps a
genealogist or a private investigator?
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bothfeet123@hotmail.com (BothFeet) wrote:
....
Thank you all so much for the replies.
My reason for requesting an annulment is financial.
My ex has decided that he will file taxes married filing
separate this year with several nice itemized deductions. I am
left with no legal choice but to file msf with itemized
deductions. Which would be great if I had any bleeping
deductions! The only deductions I can take are my CA state
taxes, leaving me with a sky high tax bill.
I have decided to go ahead and file for the annulment, but I
have no proof. I asked him and he said he will not help me by
providing a copy of his marriage and divorce papers.
Does this now shift the burden of proof to me?
Yes, probably.
If I file for an annulment based on prior marriage will the court
say that I must provide proof? Or will they shift the burden to
him and make him come up with the documents?
No, you will have to provide proof.
I am also researching how to obtain the documents from his home
country, but with a limited ability to read and write in his
language I can get a general idea of how to get the documents
but I am not sure about the details, such as exact wording for a
letter. Perhaps a genealogist or a private investigator?
I work with an investigator who primarily does these kinds of
searches. Write to me and I'll put you in touch with him.
My guess, though, is that the easiest and fastest way to do this
would be to find an investigator in his home country, preferably in
the area where he was married and divorced. There are phone books
for some European countries on the internet, or check with the
nearest consulate.
Stu
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In article <vhq350920v9va0ourattbgrbplvcpm0ook@4ax.com>,
BothFeet <bothfeet123@hotmail.com> wrote:
My ex has decided that he will file taxes married filing separate this
year with several nice itemized deductions. I am left with no legal
choice but to file msf with itemized deductions.
Are you sure that's correct? I know that if a couple files MFS then
either both or neither takes the Standard Deduction, but I don't know
what happens if they file differently (that is, which one overrides).
It's possible that he'd lose the deductions if you file the standard
deduction.
Seth
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My ex has decided that he will file taxes married filing separate this
year with several nice itemized deductions. I am left with no legal
choice but to file msf with itemized deductions. Which would be great
if I had any bleeping deductions! The only deductions I can take are
my CA state taxes, leaving me with a sky high tax bill.
If you have grounds for believing that your marriage was void ab
initio, then you are not, and never were, allowed to file jointly. You
should at least preserve your position with the IRS by claiming the
right, as a single filer, to take the standard deduction, and (to
avoid penalties and interest) paying the tax as MFS with itemized
deductions. You could get the issue into the courts, and depose your
putative spouse, by then suing for refund.
He may become more cooperative when he learns of your strategy.
....
I am also researching how to obtain the documents from his home
country, but with a limited ability to read and write in his language
I can get a general idea of how to get the documents but I am not sure
about the details, such as exact wording for a letter. Perhaps a
genealogist or a private investigator?
Expensive. Your putative spouse's consulate will have information on
how to prove or disprove the existence of the prior marriage. You can
get some information from the State Dept. web site. The "reciprocity"
section contains information on how to get documents and
certifications in specific foreign countries. This may (or may not) be
useful in your case.
http://travel.state.gov/reciprocity/country_pick.htm
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Seth Breidbart wrote:
Are you sure that's correct? I know that if a couple files MFS then
either both or neither takes the Standard Deduction, but I don't know
what happens if they file differently (that is, which one overrides).
It's possible that he'd lose the deductions if you file the standard
deduction.
The precise legal forulation is that if both spouses file MFS,
and one itemizes deductions, then the standard deduction of the
other spouse is $0. In effect, if one spouse itemizes, the other
has to.
--
This account is subject to a persistent MS Blaster and SWEN attack.
I think I've got the problem resolved, but, if you E-mail me
and it bounces, a second try might work.
However, please reply in newsgroup.
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