What it Takes to Be a Putative Spouse in California and Its Benefits Part 3-the Effect of a Putative Designation

• Publication year: 2018
• Author: Hon. Mark Juhas

What it Takes To Be A Putative Spouse in California and Its Benefits Part 3-The Effect of a Putative Designation

Hon. Mark Juhas

Los Angeles County Superior Court Judge Mark A. Juhas has presided in family court since he was appointed to the bench in 2002. He also chairs the California Commission on Access to Justice and teaches extensively in the areas of family law, self-represented litigants and access to justice.

This, the third and final installment of this article, was promised quite some time ago. As the old adage goes: "it is better late than never."¹ In this segment, the discussion comes full circle and the possible result arising from a nullity is fleshed out. As discussed earlier, marriages are either valid, void, or voidable. When a valid marriage ends, the law is clear, the property is equally divided, and spousal support is awarded. But, what happens to a spouse's property and spousal support rights if a marriage is declared void? Recall that if a marriage attempt is legally ineffective, the marriage is annulled, and the parties are returned to their status as unmarried persons.² Simply, unless one or both of the parties are putative spouses under the law, there are no property rights following annulment of a marriage.

But what happens in the fairly common situation where one spouse finds out several years after marriage that their spouse was already married to someone else when they got married? How do they untangle a legally non-existent marriage? In that set of circumstances, the parties may have acquired substantial assets and returning them to an unmarried condition would result in a significant financial hardship. Both the legislature and the judiciary have recognized this inequity and have created the equitable remedy of putative spouse. As will be seen, while the policy behind putative relationships has been clearly developed in the law, how it all resolves in a real-world situation is extremely fact dependent.

The judiciary initially created the putative spouse doctrine as an equitable remedy over a century ago.³ As noted in Estate of DePasse,⁴ the putative spouse doctrine was established to protect rights in property, which are acquired through the parties' joint efforts. Obviously, when people marry, they have an expectation that they are working together to improve the community, not working toward increasing one party's separate property. It is this general policy that informs and governs the law surrounding putative spouses. The driving force behind putative status is to protect innocent individuals who work for the collective good of both spouses and later learn that their marriage is invalid.⁵ Plainly, the law should not punish a spouse operating in good faith and under this belief.

Following the judiciaries' lead, the Legislature statutorily approved putative spouse status, which ultimately became Family Code section 2251(a). As of January 1, 2016, Family Code section 2251(a) provides:

(a) If a determination is made that a marriage is void or voidable and the court finds that either party or both parties believed in good faith that the marriage was valid, the court shall:
(1) Declare the party or parties, who believed in good faith that the marriage was valid, to have the status of a putative spouse.
(2) If the division of property is in issue, divide... [according to the statutes commencing with Section 2500], that property acquired during the union that would have been community property or quasi-community property if the union had not been void or voidable, only upon request of a party who is declared a putative spouse under paragraph (1). This property is known as 'quasi-marital property.'

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The current language in section 2251 allows a putative spouse designation only to the spouse or spouses acting in good faith, or the "innocent spouse." The spouse that knows (or, presumably should have known) of the marriage infirmity cannot find safety in section 2251.⁶ In the prior iteration of 2251 and cases that interpreted it, there was a debate as to whether the entire marriage itself was putative, or a specific spouse was putative; in other words, was there a putative marriage, or only an individual spouse could be so designated? If the marriage was putative, then the "non-innocent" spouse could receive the benefits of the putative spouse designation.⁷ Section 2251 was amended to clarify that a putative spouse designation is a shield, not a sword.

The following four sections in the Family Code address the issues of debt (section 2252), child custody (section 2253), support (section 2254) and attorney fees (section 2255); once putative status is achieved, a putative spouse is entitled to all these protections. According to the recent In re Marriage of Garcia⁸ matter, a pendente lite order determining that a spouse is a putative spouse is not appealable as it is not a final determination. Such an order merely allows the spouse to pursue a claim for support, property and fees, it does not finally adjudicate the claims.⁹ Thus, while Mr. Garcia could appeal the amount of the pendente lite spousal support, he was unable to challenge the underlying order that allowed for support and fees in the first place.

A void marriage always remains a void marriage, regardless of putative spouse designation. A putative spouse designation does not validate a marriage, it only allows community property and spousal support protections. For example, if a statute requires a "surviving spouse" putative status, it does not cure the marriage defect allowing a putative spouse to recover as a surviving spouse.¹⁰

Importantly, obtaining putative status cannot be done through simple cohabitation or a contractual arrangement. While California law supports contractual agreements between consenting and capable parties, as demonstrated in Marvin v. Marvin,¹¹ in order to rise to the level of a putative spouse, there must be an attempt at marriage.¹² Further, because California does not recognize common-law marriages,¹³ it is uncertain whether California would support putative common-law spouses as there is a split in authority.¹⁴ Generally, however, it appears that common-law spouses would receive little protection.

Good Faith Belief

In 2013, the California Supreme Court caused a major shift in the putative spouse law through its ruling in Ceja v. Rudolph & Sletten, Inc.¹⁵ Robert Ceja married Nancy Ceja in September 2003; unfortunately, however, unbeknownst to Nancy, Robert was still married to his first wife Christina until December 2003.¹⁶ A few days short of his wedding anniversary in 2007, Robert died in a construction accident. Because Nancy brought a wrongful death action, the Ceja court interpreted Code of Civil Procedure section 377.60(b).¹⁷ Wrongful death actions are purely...