With the ease of access to legal records and official documents provided by the technological advances of this age, it is hard to imagine that one would ever have a need to question the validity of his or her marriage when filing for a divorce. However, it happens. Such a situation involving an invalid marriage is known in Illinois as a “putative marriage.”
A putative spouse, according to 750 ILCS 5/305, the “Putative Spouse” law, is one who (1) has undergone a marriage ceremony, (2) has cohabitated with the person whom he believes his spouse to be, and (3) believes in good faith that he is married to his “spouse,” yet for one reason or another the marriage is invalid. This invalidation is most often due to technicalities, such as a pre-existing and still-valid marriage of one of the spouses. The person who is unaware that his spouse is already legally married before entering into the second marriage is called the “putative spouse.”
So what should an individual do in the event that he desires to obtain a divorce from a spouse to whom he is not “legally” married? As one can imagine, the legal ramifications of realizing you are a putative spouse can be far reaching, especially in terms of divorce and equitable division of assets. Fortunately for the putative spouse, in the event of divorce, he is entitled to the same marital property rights as though the current marriage were legal as he believed it to be. These rights include:
1. Rights to division of marital property,
2. Rights to maintenance (alimony), and
3. Rights to child support
Also note, the rights of the putative spouse (i.e., Husband #2) do not outweigh those of the legal spouse (i.e., Husband #1), however the court will divide the assets as justice demands and in the interest of all parties involved.
For more information on putative marriage, feel free to contact The Law Office of Bradley R. Tengler in Rockford, IL at 815-981-4859 for a free consultation. Please note, the above does not constitute legal advice. Please discuss your specific rights with an attorney in your own jurisdiction.