Family Law

Grounds for Divorce: Bigamy

By Joseph Pandolfi, Retired Judge
Find out how bigamy affects your marital status.

How the Law Views Bigamy

Bigamy occurs when someone who is already legally married marries someone else. (People sometimes confuse bigamy with polygamy. They’re not the same.)

Bigamy is illegal in the United States. Each state has its own laws dealing with it, and the applicable penalties can vary from state to state.

How Does Bigamy Affect a Marriage?

Any marriage occurring while one of the spouses is already in a legal marriage is void—meaning legally invalid. For example, let’s say John marries Jane in a formal ceremony and receives a marriage certificate. At some point after that, John takes up with Mary, and asks her to marry him without disclosing his existing marriage or getting divorced. John and Mary then tie the knot.

In this scenario, John’s marriage to Mary is void. As far as the law is concerned, it never happened. The reason is that John’s existing first marriage denied him the legal right to marry Mary. His marriage to Jane, however, is still valid because it predated the second marriage.

Is Bigamy a Ground for Divorce?

In certain states bigamy constitutes a legal basis (ground) for divorce. In Tennessee, for example, you can allege bigamy as the reason for your divorce if your spouse knowingly entered into the bigamous marriage.

Using the example above, if Jane and John lived in Tennessee, Jane can sue for divorce based on John’s intentional bigamy. But Mary can’t, even though she didn’t know John was already married. In order to obtain a divorce, you have to be in a legal marriage. As previously indicated, because Mary’s marriage to John is legally void, technically the marriage never existed, and therefore, the couple would not be entitled to pursue a divorce and seek the protections of state divorce laws.

Unintentional Bigamy

Admittedly that sounds a little strange. It’s hard to imagine people not realizing they’re still in a prior marriage. But it does happen. There are two situations in which this is most likely to occur.

A Divorce Was Never Finalized

The first scenario is where someone goes through a divorce but is unaware the divorce was never completed. Maybe a judge failed to sign the final divorce judgment, through some oversight or a dispute over the document’s wording. Also, in some states, the courts make you wait a period of time (normally around three months) before signing the divorce judgment, just in case either spouse has a change of heart about the divorce.

If this is the case, you can resolve your bigamy issue by finalizing the prior divorce. In all probability, you’d have to start from scratch with your newer relationship by remarrying. However, you should check with a local divorce lawyer to see if your state might validate the later marriage once the divorce is completed.

The lesson to be learned from this is that you should never simply assume your divorce is final—you must be sure that you receive a final divorce decree from the court.

A Missing Spouse

If a spouse is missing, and hasn't been heard from for a certain period of time, a court may eventually declare the absent spouse dead. In New Jersey, for example, a spouse must be missing for five years before a judge will declare that spouse dead. But this may vary from state to state. Additionally, the period may be shorter if the person is believed to have been involved in a catastrophic event and there’s been no word or chance of survival.

If someone legitimately believes a spouse is missing and presumed dead, and it later turns out the spouse is still alive, most—if not all—states wouldn’t consider a remarriage to be bigamous. In fact, depending on your state, the law could even take the step of validating the remarriage.

It’s important to remember that an honest belief your spouse is dead is a requirement in this situation. You should make a diligent effort to discover your spouse’s whereabouts, like making inquiries of friends and relatives, as well as checking places where your spouse may have been likely to go.

It’s also a good idea to file a petition with the court to have your spouse legally declared dead, so that you have a formal court judgment to that effect.

Seeking an Annulment

If you’re the innocent spouse in a bigamous marriage, there are routes you can take to end the relationship. Because your marriage never really existed, you can simply walk away. But that may not be a satisfactory option if you have children, or if you and the bigamist accumulated property together. In that case, you should consider applying to the court for an annulment, if that’s available to you in your state under these circumstances. In many states, such as Georgia for example, being in a bigamous marriage is a ground (legal basis) for annulment.

In an annulment action, the court could decide issues such as alimony (spousal support), child support, custody, visitation (parenting time), and division of property. Note that in order to obtain any of this relief, you will normally have to show that you married in good faith, that is, you didn’t know your partner was still married.

State laws may vary when it comes to handling requests for relief in an annulment. For example, New Jersey doesn’t permit its courts to deal with division of property in annulment actions. (In cases where the court won’t handle property distribution, general property ownership law would apply.)

Getting an annulment is a good idea if you’re concerned that the bigamous marriage may haunt you should you decide to marry in the future. An annulment not only formalizes the end of the relationship, but it treats it as though it never existed at all, and you will receive a written judgment to prove it.

Dealing with the legal fallout of being in a bigamous marriage can be a daunting task. If you have questions, you should speak with a local family law attorney for advice.

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