What happens if you go to get a divorce only to find out your marriage is void!?! Unfortunately this can and does happen and can be very scary. Here is a real question we received regarding a void marriage:
I thought I was legally married, but I wasn’t… Now what?
Imagine getting married to someone, and finding out during your divorce that you were never legally married. That means you have a void marriage. You and your believed-to-be spouse had multiple children together, saved money, owned a house, and had significant community assets. What happens in this situation? Does he or she get to walk away with everything? Arizona had developed case law to help spouses that find themselves in these situations.
First, even though there is technically no community property, as there was never a valid marriage, the courts will recognize that a believed-to-be spouse has an interest in the property accumulated during the marriage. This is especially common when there is an innocent spouse who had a good-faith belief that there was a valid marriage. This person is called an innocent putative spouse. It is usually very simple to divide the property if only one spouse is involved. It will likely be divided in half, similar to those going through a divorce. It can become more complicated if a spouse is still legally married to another person. The court has taken a number of different approaches when this happens. The approaches range from giving all the property to the husband, to dividing it between the putative spouse and husband, or giving the two spouses a quarter and the husband a half.
Keep in mind that Arizona does not recognize common-law marriages. This means that Arizona will not care if you and your partner were living with each other and acting like a married couple. The court wants evidence of a valid marriage. Usually the court takes a position that it is not there to help those who only cohabitated. However, there can still sometimes be division of property in those types of situations. Usually the court will use different types of theories if there is a property claim. These theories include partnership agreements, express agreements to share, implied agreements to share, constructive trusts, unjust enrichment, or quantum meruit. So keep in mind that there are remedies in these situations.
If you have been cohabitating with a partner for some time now, and there will likely be a property issue, you will most likely have to file a complaint against your partner when the relationship ends. It is important that within your complaint you address that there was an explicit and implicit agreement that the property would be equal to both parties. You also need to state that earnings and incomes to acquire those assets came from commingled funds. Commingling and community funds between unwed couples can become complicated. It is advised that you see an attorney if this issue arises.
Arizona does protect parents that are not married, however. There are more complicated steps involved, but both parents can and likely will be recognized. The difference between a dissolution and an unmarried couple is that the father will likely have to establish paternity before he can have any claim to the child when there is an unmarried couple. When a couple is legally married, there is already a presumption that the husband is the legal father and paternity has been established.