By: Michael H. Gora
Q: Fifteen years ago, I married a man in Ft.Lauderdale. We have two boys, thirteen and eleven years old. We own a successful business in which we both work. We have a large home, savings in a brokerage account, a retirement account, a fine art collection, a house full of furniture, and a couple of upscale cars.
My husband was born and raised in a small town in Texas. He told me that he had been married before, but had been divorced, went into the Navy, and when he was discharged, moved to Ft.Lauderdale.
Two months ago, his first wife served him with divorce papers. The papers filed in Ft.Lauderdale, declared that he and she had a child, which she had raised, now seventeen years old. She asked for alimony, child support, and back child support, and distribution of any property he had acquired during their marriage.
We hired an attorney. The woman’s attorney told ours that the first wife had filed papers in Okalahoma, while my husband was in the Navy, but never followed through with them. She had lived with another man for years, but the son’s age made it clear that the boy was my husband’s son.
Are my husband and I legally married? Since Texas has common law marriage, is she married to the man she has lived with?
Can my husband be responsible for seventeen years of back child support to this woman? Alimony? Distribution of Property, which we have earned and saved? What rights would I have against him if we ever got divorced?
A: If the woman in Okalahoma had not followed through with the original divorce, and no divorce judgment ever ended their marriage, you and your husband are not legally married. Since a person cannot be married to two people at the same time, the other woman and her live in cannot be married under Texas common law, or any other way.
Your questions about his “wife’s” rights to alimony, child support, and equitable distribution of property that you and he now own are complex and driven by the facts concerning her relationship with the other man, whether or not she tried to find your “husband” over the last many years, and whether she could have found him if she had tried. If you and your husband own your titled property in joint names, it would be harder for her to establish an interest.
Your “husband’s” largest jeopardy might be for back child support. If the woman never tried to find him, or if she has always known where he could be served and never reached out to him for child support she may be barred from seeking it now, as child support can be waived under these narrow circumstances. If she had applied and received welfare payments for the child, the State of Texas might have a claim for reimbursement.
It is less likely that she would be able to obtain an alimony award against your “husband”, or a distribution of property accumulated between you and your husband during the marriage. These rights, while statutory, in Texas and in Florida are based in equity (fairness) as well as in statute. She has lived with at least one other man, and perhaps more, while you and your husband earned the income, and accumulated your property, while working together.
As to your right to claim these rights against your husband in a later legal action, Florida case law provides equitable remedies to a person who invests years in a marriage, only to find out that he or she is not legally married.
Equitable alimony, or alimony by estopple, may be provided to you under such circumstances, if she can prove that she had no reason to believe that her “husband” had never legally divorced. This result will occur whether or not the “husband” had intentionally defrauded his wife or had erroneously depended on his first wife to complete the divorce proceedings.
The right to distribution of property, which would have been marital, if the parties had legally been married, can be established through the construction by the court, or the parties’ settlement agreement, of a trust.
Florida divorce law is designed to “default” to a fair, evenhanded, resolution of the marital relationships. It is, however, based on equitable principles broad enough and flexible enough to protect those who innocently believe that they are married, but are not.
If you plan to stay together, it is suggested that after the divorce case is over, the two of you enter into a prenuptial agreement describing what happened, and re-establishing all rights between you, before you enter into a legal marriage.
Michael H. Gora, Boca Raton divorce attorney, has been certified by the Board of Specialization of The Florida Bar as a specialist in family and matrimonial law and is a partner with Shapiro Blasi Wasserman & Gora P.A. in Boca Raton.
Posted by linda
on Jul 19 2013 Filed under Columnists, Divorce Florida Style.
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