By Mike Gora
Q: In a recent column, you answered a question about some one who might not be married, because the husband thought that his divorce from his first wife might have been invalid. Under those circumstances what rights to alimony and property might a “wife” have, after twenty years of marriage, if she finds out her husband never really divorced his first wife.
A: Florida case law provides equitable (fair) remedies to a person who invests years in a marriage, only to find out that she is not legally not married. Equitable alimony, or alimony by estopple, may be provided to a wife under such circumstances, if she can prove that she had no reason to believe that her husband had never legally divorced. This result will occur whether or not the husband had intentionally defrauded his wife or had erroneously depended on his first wife to complete the divorce proceedings.
The right to distribution of property, which would have been marital, if the parties had legally been married, can be established through the construction by the court, or the parties’ settlement agreement, of a trust.
Such a “constructive trust” is often used by the courts to correct an unfair legal result where the parties owe a fiduciary duty to one another. Such a relationship would surely arise between a couple who believed that they were married and were not, or in circumstances where one person knew they could not marry but never told the other person, before going through
a marriage ceremony and years of living together.
Florida divorce law is designed to “default” to a fair, even handed, resolution of the marital relationships. It is, however, based on equitable principles broad enough and flexible enough to protect those who innocently believe that they are married, but are not.
Note that under no circumstances would children’s rights of the failed union be affected. Child support and visitation rights would still exist under Florida law.
Michael H. Gora has been certified by the Board of Education and Specialization of The Florida Bar as a specialist in family and matrimonial law and is a partner with Shapiro Blasi Wasserman & Gora P.A. in Boca Raton.