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Am I Legally Married, What Are The Consequences If I Am Not?

orlando divorce lawyer family law attorney central florida
orlando divorce lawyer family law attorney central florida

There are many factors that determine whether a couple is legally married. Several years ago, we had a case dealing directly with this issue. Because time has passed and memories of details fade, and to protect the privacy of the client, some of the facts in the account below may not coincide with the facts of the actual case, but they serve to illustrate the legal principles and arguments involved.

Our client was married for seven years to a person he thought was his wife. They had no children together. She was married previously and thought she had gotten a divorce from her prior husband in the Dominican Republic. She told our client that she was divorced at the time they married. She subsequently filed for divorce against our client.

Our client hired an attorney (not our law firm) to represent him in the divorce and the parties proceeded along the normal divorce process. Then he heard on the news that divorces in the Dominican Republic, during the time his wife was supposed to have been divorced, were not done properly and that unauthorized individuals were conducting “rogue” divorce proceedings there during that period of time.

He informed his attorney that he wanted to challenge the validity of his marriage since he believed his wife was not properly divorced from her prior husband at the time she married him and therefore they could not be legally married to each other. His attorney did not want to pursue that avenue with the client and the client retained us for further investigation.

We investigated the situation with Dominican divorces during that time period. We deposed the “wife” to ascertain exactly when and where she contended she was divorced. We hired an attorney in the Dominican Republic to obtain and review the relevant “divorce” documents and to give an opinion as to whether the “wife” was divorced under Dominican law. She found that there were irregularities of some of the Dominican divorces during this specific time period. Additionally, she found that there were irregularities in this divorce because the proper Dominican authorities never finalized it.

The main asset was the house they both lived in, which belonged to our client prior to their marriage and was titled in his name only. Money earned during the ” marriage” however, had been used to maintain and pay for the home. Our client also had retirement accounts in his name which he contributed to during the “marriage” and which grew during that time.

It was apparent that the Judge did not want to invalidate the marriage of these parties. She did not want to rule in our client’s favor because then the “Wife” would not receive any of the assets that would otherwise be marital. Nor would she be entitled to any alimony.

The Judge made us jump through every evidentiary hurdle, and made it very difficult to get Dominican certificates into evidence. These certificates stated there were no documents showing that the “wife” was divorced in the Dominican Republic. Eventually, we were able to get them admitted into evidence.

We also argued that even if “wife” was divorced in the Dominican Republic, that divorce would not be recognized in Florida (or in New Jersey where “wife” resided at the time of her alleged divorce and where she and our client were “married”), because the Dominican Republic lacked jurisdiction over the “wife “. See e.g. Lopes v Lopes 852 So 2d 402 (5th DCA, 2003), which also dealt with a Dominican divorce. Our argument was that the judgment would not be recognized under the Doctrine of Comity.

For a Dominican divorce decree to be entitled to recognition under the Doctrine of Comity it must have jurisdiction to enter the judgment and the judgment must not be against public policy. We argued that the “wife” lacked minimum contacts with the Dominican Republic and did not voluntarily subject herself to its jurisdiction. Therefore any judgment it entered would lack personal jurisdiction, would violate the due process clause of the 14th Amendment of the U.S. Constitution and well as the due process clause of the Florida Constitution, would violate public policy and thus would not be entitled to recognition here.

In Florida, there is a presumption that a marriage between two people is valid. Anyone challenging the validity of a marriage must overcome this presumption, which is not easy to do. If the challenging party overcomes the presumption, then the other party can offer evidence to rebut the evidence presented by the challenging party.

There have been many cases in Florida where the courts have found that the challenging party has been unable to overcome this presumption. In those cases, the marriages being challenged were held to be valid. See for example, Teel v. Nolan Brown Motors Inc. 93 So2d 876 (Fla. 1057); King v. Keller, 141 So2d 259 (Fla. 1962).

Whether the challenging party is able to rebut the presumption in favor of the validity of a marriage depends on the particular facts of the case. Sometimes, very small details can have very large consequences. For example, under our Comity argument, it was important that the “wife” never sent back to the Dominican Republic any of the divorce paperwork she received from her husband. It was also important that the wrong Dominican court created the paperwork the “wife” was relying on to argue she was divorced. Finally, the scope of our search for a divorce decree was critical.

The challenging party must do an exhaustive search to show that a divorce was not issued. Remember, the challenging party must overcome the presumption that the marriage was valid. If the search is not exhaustive enough, they will not be able to overcome that presumption. The geographic location of the search is sometimes also an issue, especially if the party who claims they were divorced does not know when or where the divorce occurred.

In the end, we prevailed at trial. The Judge reluctantly agreed that we had met our burden of showing that the “wife” was still legally married at the time of her marriage ceremony to our client and therefore was never legally married to our client. But, this was not an easy case.

The “wife” appealed the trial court’s decision and the Court of Appeal upheld the trial court’s decision.