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What Happens If I Married Someone Whose Divorce Was Not Finalized?

Updated on
April 7, 2021
Article written by
Attorney Kevin O'Flaherty

This article will discuss the consequences of marrying someone who was not legally divorced. We will answer the following questions:

 

  • Is the new marriage invalid?
  • What about domestic partnerships?
  • Does common law marriage require a divorce?
  • Can I get in trouble even if I didn’t know before the marriage?
  • Are there any exceptions?

 

Getting married to someone before their divorce is finalized, even if you didn’t know they were still married, constitutes bigamy. Bigamy is a federal crime and is illegal in all states; however, certain states, like Utah, have very lax rules on bigamy. If you didn’t know about your spouse’s existing marriage, you wouldn’t be in any direct violation of the law, but your spouse may be. Because the new marriage is illegal, it is considered void in every state and can be annulled. 

 

Is The New Marriage Valid?

 

Each state has its laws regarding bigamous marriages, but in no state is a bigamous marriage valid. Whether one or both of the marrying individuals believed the other was not married makes no difference as to the validity of the marriage. Furthermore, if someone knows they are still married and willingly attempts to marry again, they will face fines and jail time. Usually, there is no need to get a court-ordered annulment, as the marriage is invalid from the start.

 

What About Domestic Partnerships?

 

Generally, anti-bigamy laws extend to domestic partnerships and same-sex couples, and while the exact statutes may differ from state to state, a new domestic partnership is not legally valid if one or both individuals fail to dissolve the old partnership before the new union.

 

Does Common Law Marriage Require a Divorce?

 

Many states don’t recognize common-law marriages as valid. For example, in Illinois, even if you live with someone for many years, have children together, and present yourself as “married” to your friends, family, and community, you are not legally married. Marriage in Illinois, and many other states, requires a marriage license. However, if you came from a state that considered your union a common-law marriage, and then you tried to get married again, thinking your common law marriage was invalid, you may run afoul of bigamy.

 

Can I Get In Trouble Even If I Didn’t Know Before the Marriage?

 

No, if you truly didn’t know the person you were married was still married, you have nothing to fear. However, if you try to stay married to that person, you run the risk of being charged with bigamy. Even if you suddenly find yourself committing bigamy, all you have to do to get the charge dropped is to annul the marriage or “divorce” the other person. Often, bigamy occurs because one person was married in another country, moves to the United States, and then gets married later, but forgets to dissolve the previous marriage. Sometimes, the person committing bigamy isn’t sure if they were properly married in their last country of residence.

 

Are There Any Exceptions?

 

It seems clear that if someone marries another person who did not procure a divorce before the new marriage, they have committed bigamy. But, if their spouse is presumed dead according to state law, there is no need to divorce before marrying. 


What Happens If I Married Someone Whose Divorce Was Not Finalized?
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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