Sister Wives Can’t Share the Retirement Account – Update on Bigamous Marriage in South Carolina

1167997_10201920719567398_1881456886_nRecently the South Carolina Supreme Court was asked to answer a question for the United States Court of Appeals for the Third Circuit about the status of South Carolina law related to a putative spouse – someone who is commonly believed to be married to someone else.  In the case of Lavona Hill v. Bert Bell/Pete Rozelle NFL Player Retirement Plan; Retirement Board of the Bert Bell NFL Player Retirement Plan v. Barbara H. Sullivan, Thomas Sullivan who happened to be a former football player in the NFL was married to Lavona Hill.  They separated but never divorced.  Then, several years later, Mr. Sullivan “married” Barbara Sullivan.  The facts of the case indicate that Ms. Sullivan had no knowledge of Mr. Sullivan’s prior marriage to Ms. Hill and had no idea that he was not divorced from her.  Now, Mr. Sullivan’s “wives” are fighting over who receives Mr. Sullivan’s NFL retirement benefits – or should they share them.

South Carolina law is pretty clear that a bigamous marriage is void ab initio.  Specifically, S.C. Code §20-1-80 states, “All marriages contracted while either of the parties has a former wife or husband living shall be void. But this section shall not extend to a person whose husband or wife shall be absent for the space of five years, the one not knowing the other to be living during that time, not to any person who shall be divorced or whose first marriage shall be declared void by the sentence of a competent court.”  That means, no matter what, the marriage is void and cannot be made into a valid marriage.

The issue here is that Ms. Sullivan had no idea that Mr. Sullivan was still married when she married him and she lived with him as his wife from their marriage in 1986 until his death in 2002.  It would seem that Mr. Sullivan would probably want the woman he lived with as being married for over 20 years to receive his benefits and she did.  Then, four years later Ms. Hill petitioned the plan to receive the benefits.  A lawsuit was subsequently filed by Ms. Hill to seek the retirement benefits and the Third Circuit Court of Appeals posed the question to our state Supreme Court asking whether our law supported the “putative spouse doctrine.”  That would mean that even though Ms. Sullivan was not actually married to Mr. Sullivan because he was legally married to someone else, she could still lay claim to marital benefits if she was “married” to him in good faith with no knowledge of the fact of marriage.  In this case the court could divide marital benefits up between the wife and putative wives as appropriate based on the circumstances and what promotes justice.

The Court held that South Carolina does not recognize the putative spouse doctrine because “it is contrary to South Carolina’s statutory law and marital jurisprudence.”

Lessons learned:

  1. When you decide to divorce your spouse, make sure you follow through and are actually divorced.
  2. When you decide to get married.  Make sure your significant other is “available” to be married and not still married to someone else.

 

Marriage Tips from NBA “Player X”

When I got home from work this afternoon I started browsing through the January 10, 2011 issue of ESPN The Magazine.  One of my favorite articles in the magazine is the NBA Player X article and the NBA Player X blog.  I like the inside look at the league and the perspective of some amazing athletes and businessmen.

I’m not sure that I ever thought my ESPN The Magazine subscription would give me a lot of inspiration for my family law blog, but I was proven wrong this evening.  The title of this edition of the NBA Player X article is “Why should you take marital advice from a pro?  Because we’ve seen it all.”

I guess I should start with the title.  I have no doubt that these guys are put in the throws of some crazy temptation as soon as they get off the plane each night in whatever distant city they are playing in.  Player X describes the temptations as “crazy” and says that it is almost impossible for a married professional athlete not to cheat because of the temptations, long times away from family, “targets on our chest” and women who are “fine as hell.”

So, based on that premise, this NBA pro has some marital advice for young pros.  Here’s the summary of his tips:

  1. Have a prenup in place before you get married.
  2. Perhaps an “open door” policy with your spouse will make your marriage stronger
  3. Don’t mess with your teammates’ partners

So, let’s start with the prenup.  A prenuptial agreement is basically where you and your soon-to-be spouse sign a written agreement that has been mutually negotiated and when each party has been advised by independent counsel.  This is the place where Player X recommends that you get a prenuptial agreement in place before you get married so you don’t end up like Tiger Woods where his ex-wife Elin “took” him for $100 million. Basically, his advice boils down to this – if your wife won’t sign the prenup don’t marry her.

A prenuptial agreement may be what’s in your best interest if you are trying to protect wealth or other interests that you have obtained prior to your marriage to your prospective wife.  I would add some recommendations to this point for Player X:

First, don’t spring this on your fiancee.  I’ve seen it several times in my practice where a groom tells the bride a few days before the wedding that he would like her to sign a prenup that his lawyer has prepared.  This is bad in more ways than one.  First, it’s just bad form.  Second, it may lead a judge down the road if you face divorce to throw the prenup out because your wife didn’t have adequate and reasonable time to have the prenup reviewed by an independent lawyer, to obtain full financial disclosure from you and negotiate fairly.

Second, don’t sign the prenup without obtaining advice and counsel from a lawyer.  You may be giving up a lot – you may be giving up nothing, but you won’t know without the competent advice of a lawyer.  Many times, I have advised clients not to sign a prenup because it is not in the client’s best interest.  Most of the time, they sign it anyway (against my advice) because they want to get married.

The second bit of advice from Player X is to talk to your wife “about the temptations [you] face, answer all their hard-hitting questions and come to an understanding.”  The proposed understanding is that if the guy can play around so can the wife – as long as everyone is up front about it and not doing it behind their partner’s back.  Oh – and don’t forget the man code where you can’t do it with my teammate.

The only good part of this advice is the encouragement to talk to your husband/wife about the temptations that you face.  Spouses should be open with one another about all matters in their life.  Temptations, failures, victories, finances, friends, etc.  I meet with people every week who have separated from their spouses and most of the time a certain portion of it is due to a lack of communication between spouses.  Secrets, lies, and insecurities are born out of failure to communicate.

I’m not sure the rest of his advice is good in any world except the wacky world of the NBA.  I think most women I know would be thinking about a divorce if their husband came to them proposing an open relationship.  Maybe I’m the only one?  Player X says this will make the marriage stronger and will also make things better for each spouse and the kids.  Personally, I think it sets a terrible example for the kids.

Finally, there’s a short anecdote about Dwayne Wade’s fight for custody of his kids.  I totally respect D-Wade for wanting to be the primary caretaker for his children after his divorce.  It’s a position that most men simply don’t want.  But, I think it shows a lot when a parent is ready to step up because he/she thinks they are raise their children in a better way than their spouse.  Some fights are worth getting into.

Questions to Get Answered Before Getting Married

As a divorce lawyer I meet with people in bad marriages every day.  The marriages we discuss are widely varied and come in all shapes and sizes.  It is always sad when a marriage doesn’t work out no matter how long it lasted, but there is something puzzling that I can’t quite put my finger on about marriages that last only a few weeks or months.  Sometimes, I think the breakdown of these marriages has to do with communication issues or just varied future plans.

I ran across as list of marriage questions you should discuss with your future spouse before you get married.  These are questions about the decision to get married in general, family questions like how many children should you have, what religious beliefs do you have, what are your thoughts and ideas about money and how we will manage money as a family, will both of us work or not, what types of values do you have, what are your family values, what is your family relationship like, etc.

I think you will find the article thought provoking and helpful to make sure you are making the right decision before you get into a marriage.

Can a Couple get Married without a Ceremony?

In South Carolina there are essentially two main ways for you to get into a marriage.  The first is the traditional “statutory marriage.”  That is where you go down to the probate court in the county where you live and get a marriage license with your significant other and have a marriage ceremony.

The other way for you to get married is what is called the “common law marriage.”  What I hear from prospective clients and friends about common law marriage is that they believe that you are automatically common law married with someone after you have lived with them for a certain amount of time.

The truth is, time does not play in to determining if you are common law married.  There are several factors that will determine whether you are married or not.

Here they are:

  • Cohabitation: You and your significant other must be living together to get common law married.
  • Hold Yourself Out as Husband and Wife: You and your significant other must be holding yourself out as husband and wife.  That means when you go out you introduce them as your husband/wife.
  • Both parties are over 16 years old
  • Neither party is currently married to another person.

If you are common law married, that is the same as being married.  You have the same rights, etc. as if you are married the traditional way.  If things don’t work out you would have to get a divorce.

How Do We Get Into a Marriage?

Well, this blog talks a lot about divorce issues and how to get out of a marriage, but so far we haven’t talked about how to get into a marriage.  In South Carolina there are two ways to get married and over the next couple of days we will talk about each way to get married.

The first way is a statutory marriage.  This is what you think of when you and your bride/groom-to-be run down to the local probate court and fill out your marriage license request and then a few weeks later you gather together with 500 of your closest friends to celebrate the big day.  Check out our post later on to see what the requirements are for you to qualify for that marriage license.

The second way for you to get  married in South Carolina is more passive.  You may not even intend to be married, but you could in fact be married according to a judge.  Yup, it’s the old fashioned common law marriage.  When we talk about common law marriage we will define it as well as put down some of the rumors and incorrect ways of being “common law married.”

So stay tuned and prepare for these new posts coming in the days ahead.