I think that this is going to blow some people’s minds but I’m genuinely needing to get this information about what the courts do once the divorce papers are filed with the clerk and the process if any, that the court takes to validate the marriage before granting the divorce. OK. I’m writing a book. I’m giving up some info here because I’m interested in getting the information but I won’t give up the reason why it’s needed. I haven’t pinned down the exact route I will take with the characters in the book. I am still contemplating my options. I do want it to be as authentic as possible. That’s my pet peeve. Can’t stand when books or movies are not authentic. The motive is far fetched but I still want the actual events o be authentic and that’s why I need some information. If I can’t incorporate this scenario, then I’ll need to change the details of the book.
My question is this… When 2 people get divorced, does the court verify the marriage? I’ve got 2 scenes that I could use. One is where 2 people get a divorce for a marriage that never existed. The other is where they were actually married but already divorced. Again, not going to disclose why they would want to do this but I need to know if they did either of these, would the court find out that a. there was not a marriage to grant a divorce or b. there was a marriage but it’s already been terminated in divorce? I personally doubt that the courts verify the validity of the marriage especially from one state to another but I’m not sure. If the 2 people are willing to sign the paperwork and get a divorce in one state but were previously married/divorced in another state already then would the court find out that the marriage was already terminated? What about if the marriage didn’t even exist? I doubt that the court does much research regarding the validity of the marriage because normally people don’t agree to a divorce for a marriage that a. doesn’t exist or b. has already been terminated. What would really help is to know the process that the court takes once the paperwork is filed. Like does the clerk of court research each marriage after the divorce paperwork is filed? I know from personal experience that I didn’t have to submit like a copy of my marriage certificate when I filed for a divorce. Even if they did have to file a copy, then I could use the later scenario where they had already been divorced before. This is a legitimate question and it would be most helpful if someone worked at the courthouse or something and knew the process/steps that they go thru when divorce papers are filed. I also don’t know how far fetched it is in this day and age with technology. For all I know, there is a central system that if a divorce is filed then the court goes in and pulls up where the marriage took place and it then shows they were already divorced. Idk. If someone has any information that would be helpful then I will appreciate it. I can use another scenario if I have to but I’m not sure which route I will have it take yet. I’m a stickler for making things seem as real as possible and love to have hidden agendas or points to the book that are not easily identified. Please post a reply if you can lend a hand with this information.
In my state, no, the courts do not attempt to validate a marriage prior to granting a divorce. However, the pleadings must recite when and where the parties were married. In a fault based divorce, a non-marriage or previous divorce would most likely be discovered when raised as a defense in the pending action. The plaintiff in that scenario would be comitting a fraud on the court, and possibly perjury as well, since divorce complaints must be sworn in this state. Also, if the Defendant failed to appear, any judgment rendered would be vulnerable to collateral attack on the basis of fraud
Ya, I know about the perjury and fraud on either of these cases but trying to figure out if it’s plausible for either scenario where Both parties agree to the divorce and there is nothing that is contested. If both parties signed the papers and filed and nothing was contested then would it be plausible either for a marriage that actually happened but was already divorced or a marriage that didn’t even take place? What do you think?
One place where this is an issue these days is with same sex divorce. You can get married wherever you want, but usually only get divorced in your home state. If you live in a non-SSM state and run across the state line to get hitched, but you can’t get divorced if your state doesn’t recognize SSM.
Common law marriage might be worth a look. That’s where two people live together for X number of years so are considered married and require a divorce when split up. In those cases, they may need proof that they were together X years. Since only some states have common law marriage, if you move from one that does to one that doesn’t and try to get a divorce, that can cause extra confusion and would likely require proof.
I’m open to the fact it could. I am no expert on Marriage law, but know I thing or two about criminal law. I assume it would be similar to getting a criminal conviction that never occurred expunged or pardoned. I can see this happening in a pardon (not expungement - as you would file that as part of the original court record for the criminal case).
I don’t see the benefit with that either.
The OP does realize that it isn’t like John and Susie now have the status of being “divorced”? At least I don’t think so. The marriage is what is changed/ended.
Maybe you’d have to put “divorced” on your OKC profile? Get free membership to “Divorced Partners of Wisconsin”?
I can see someone thinking they were legally married - and doing this by mistake. Don’t see the harm.
Admittedly I’m not totally sure I’m parsing the OP’s wall o’ text correctly, but they’re talking about trying to get divorced when you’re not considered married in the first place, right? That’s pretty much the situation for a married SS couple in a non-SSM jurisdiction.
I have a friend who does family law in a state that recognizes common law marriage and she has definitely done a few divorces (or non-divorces as it sometimes turns out) where there main issue was whether the couple was actually married or not. It’s a little easier to see that situation when one partner is disputing the marriage than if it’s amicable, though.
One situation where a person might want a “divorce” even though they were never married to the person or they were already divorced might be getting side rulings such as alimony, child support, etc.
Maybe a spurned ex-mistress wants revenge and decides to sue for “divorce”, claiming a common-law marriage they know didn’t actually exist in order to get the judge to order an alimony or child support payment.
Alternately, you could have a malefactor who wants to ruin someone else’s marriage by fraudulently filing for divorce under their victim’s name (hey, nobody said criminals were smart or wise). Maybe Disappointed Mom forges Lazy-Son-In-Law’s signature on a divorce petition because she wants her daughter away from that guy.
To make an analogy, the Roman Catholic Church recognizes a conditional baptism that can be administered when a wannabe Catholic thinks they might have been baptized but is not sure. One important doctrine is that trying to baptize someone who is already baptized is a sacrilege, so they have defined a process to do it conditionally when a prior baptism is in doubt. If it turns out that the person wasn’t actually baptized, then God recognizes the conditional baptism as the person’s baptism. If they were already baptized, then God just sees it as someone getting wet. Either way, the desired effect is attained.
We’ve had similar issues come up at work a couple of times. In the case I’m thinking of, the non-U.S. spouse thought his home country divorce was final when he married his U.S. citizen spouse, but it later turned out it wasn’t final. So they tried to remarry in their home state, but their home state kept refusing to issue them another marriage license, saying they were already married, so why did they want to get married again? Even a letter explaining the situation didn’t help - in the end we finally had to have them go to another state and get remarried there so she could apply for a green card for him based on a marriage that was actually valid.
It is possible to obtain child support, custody, and/or visitation as an independent action, without filing a sham divorce. It is also possible to bring an action for separate maintenance, which is sort of comparable to alimony, but requires an actual marriage.
In my state, dissolving a same-sex marriage is problematic. This state does not recognize those marriages, but our courts are starting to realize the need to fashion some sort of equitable remedy for division of property. I haven’t had a case like that yet, but I’d probably be willing to represent someone if asked to do so.
OP, are you using a real location? If you are, you need to know that specific location’s specific rules, and that means you need to tell us where it is. If you’re not, just use whichever laws you want them to have.
Spanish courts cannot grant either a marriage or a divorce that won’t be valid in the countries the two parties are from; for countries that have systems equivalent to our Civil Registry, they’ll require certificates of current civil status; in the case of SSM, it can be celebrated only if the two countries have something considered equivalent. Two people whose marriage was celebrated in a country with no divorce cannot get a divorce in Spain.
Different locations have different laws. Just make your location one where the law does whatever you want it to do.
