What can I do if I found out my husband is still married while married to me?

03/16/2007 - Category:Divorce - Annulment - State: CO #1587

Full Question:

I moved into an apartment with my husband, but he had been abusing me and has left the state. I also found out that he is still married so our marriage is not legal. Both our names are on the lease. My name is of course my married name rather than my maiden name. I have not changed my name back to my maiden name yet. How can I stay in the apartment and have him removed from the lease and/or keep him from returning.

Answer:

Bigamy is the condition of having two wives or two husbands at the same time. The second marriage to someone who is already legally married is void and may be annulled, while there is no effect on the first marriage. A person who knowingly commits bigamy is guilty of a crime, but it is seldom prosecuted unless it is part of a fraudulent scheme to get another's property or some other felony. A marriage in another country is normally valid in the US; so, if someone is married in another country, they cannot get married again in the US or vice versa. Bigamy may be accidental, such as when the previous divorce was not finalized due to a technicality, or the previous spouse who was presumed dead is alive. In the United States if a husband or wife is absent and unheard of for seven (or in some states five) years and not known to be alive, he or she is presumed dead, and remarriage by the other spouse is not bigamous. It is not necessarily a defense to a charge of bigamy that the offending party believed in good faith that he was divorced or that his previous marriage was not lawful.

Bigamy is a marriage in which one of the parties is already legally married. Bigamous marriages are void, and grounds for annulment. An annulment is legal decree that states that a marriage was never valid. The legal effect of an annulment is to void the marriage as though it never existed. Generally, the length of time married is not a determining factor to request an annulment.

From a legal perspective, there is little difference between an annulment and a dissolution of marriage in Colorado. The legal effect of an annulment is that the marriage never happened, which may benefit those who would rather avoid a Colorado divorce for religious reasons, or perhaps to reinstate benefits or payments lost when one party marries, such as maintenance or military medical benefits.

If the marriage was entered into in Colorado, an annulment can be initiated at any time. If it was an out-of-state marriage, at least one party must be a Colorado resident for 30 days before initiating the annulment. There is no 90-day waiting period after the other party is served before obtaining an annulment. However, the Colorado family law court must still resolve the issues of the division of marital property and debts, maintenance, and, if there are children, parenting rights and responsibilities and child support. So, from a practical perspective, unless the annulment is uncontested (including the other party admitting to, and the court accepting, the legal grounds for the annulment), it will still take as long as a divorce in Colorado.

Finally, even though Colorado will invalidate a marriage, retroactive to the date it was entered into, any children born of the marriage are still considered legitimate.

According to Colorado law:

(1) Any married person who, while still married, marries or cohabits in this state with another commits bigamy, unless as an affirmative defense it appears that at the time of the cohabitation or subsequent marriage:
(a) The accused reasonably believed the prior spouse to be dead; or
(b) The prior spouse had been continually absent for a period of five years during which time the accused did not know the prior spouse to be alive; or
(c) The accused reasonably believed that he was legally eligible to remarry.

(2) Bigamy is a class 6 felony.

Regarding removing your husband’s name from the lease, we suggest that you request the court to remove any rights your husband has in the lease as part of the annulment action. You may want to request that your name be changed back to your maiden name as part of this action as well.



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03/16/2007 - Category: Annulment - State: CO #1587

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