My Husband's Not Divorced from His First Wife: Is Our Marriage Legal?

illinois divorce from first wife lawyer"I just found out that my spouse was never legally divorced from his first wife, is my marriage valid? What should I do? What steps should I take to protect myself now?"

You cannot be legally married to more than one person in Illinois. The second marriage is not valid. So you are not legally married to her husband if he's married to someone else and remains that way.

But all is not lost. If your husband divorces his first wife, even now, you can become automatically married to him without the necessity of going through a second ceremony so long as you have been cohabiting with him. That is, continuing to hold each other out as husband and wife. Once the first marriage ends by divorce or annulment or the death of the first wife, then your marriage becomes valid. The Illinois Marriage and Dissolution of Marriage Act [750 I LCS 5/212 (b)] provides just such a remedy for your situation.

There are some major difficulties to your present status however, such as:

  • You're not legally married until the first marriage ends.
  • The result is that is as long as the first marriage continues:
  • You cannot inherit from your husband,
  • You cannot divorce him and be entitled to any marital property with him (property earned by him during the marriage but not titled in your name).
  • You have no rights to maintenance, alimony or support for yourself from him.

What Can I Do About These Problems?

First, have your right to inherit from your husband validated by a Last Will and Testament signed by him. However, he can revoke or change his Will. So the best solution would be to have an irrevocable living trust set up him providing rights of inheritance for you. Also consider having him take out a life insurance policy on his life with you as the beneficiary- the irrevocable beneficiary.

Second, you can have prepared a Post Nuptial Agreement with you once he is divorced from his first wife.

This Post-Nuptial Agreement should recite that he married you when he was married to someone else, that marriage ended on such and such date and that you are now legally his Wife. That the Post-Nuptial Agreement was created to remedy the problems created by his remaining married to his first wife when he married you.

Third, you can set forth in that Post-Nuptial Agreement that your right to maintenance (alimony) should be determined not as of the date his marriage to his first wife ended but as of the date you married him. In other words your right to have alimony or maintenance in the future from him should you divorce and that right should be retroactive to the date of your marriage to him.

Fourth, in that prenuptial agreement it should be written that your right to a share of what would have been marital property that he earned or acquired during his marriage to you should begin as of the date you actually married him not as of the date he divorced his first wife.

For assistance with your Illinois divorce issues, contact a knowledgeable Hinsdale family law attorney. Call 630-920-8855 for the attorneys of Martoccio & Martoccio.

The statutes in Illinois that are relevant to your situation are as follows: (750 ILCS 5/212) (from Ch. 40, par. 212) (Text of Section before amendment by P.A. 98-597) Sec. 212. Prohibited Marriages. (a) The following marriages are prohibited: (1) a marriage entered into prior to the dissolution

of an earlier marriage of one of the parties; (2) a marriage between an ancestor and a descendant

or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption; (3) a marriage between an uncle and a niece or

between an aunt and a nephew, whether the relationship is by the half or the whole blood; (4) a marriage between cousins of the first degree;

however, a marriage between first cousins is not prohibited if: (i) both parties are 50 years of age or older; or (ii) either party, at the time of application for

a marriage license, presents for filing with the county clerk of the county in which the marriage is to be solemnized, a certificate signed by a licensed physician stating that the party to the proposed marriage is permanently and irreversibly sterile; (5) a marriage between 2 individuals of the same sex. (b) Parties to a marriage prohibited under subsection (a) of this Section who cohabit after removal of the impediment are lawfully married as of the date of the removal of the impediment. (c) Children born or adopted of a prohibited or common law marriage are the lawful children of the parties. (Source: P.A. 94-229, eff. 1-1-06.)

(Text of Section after amendment by P.A. 98-597) Sec. 212. Prohibited Marriages. (a) The following marriages are prohibited: (1) a marriage entered into prior to the dissolution

of an earlier marriage, civil union, or substantially similar legal relationship of one of the parties, unless the parties to the marriage are the same as the parties to a civil union and are seeking to convert their civil union to a marriage pursuant to Section 65 of the Illinois Religious Freedom Protection and Civil Union Act; (2) a marriage between an ancestor and a descendant

or between siblings, whether the relationship is by the half or the whole blood or by adoption; (3) a marriage between an uncle and a niece, between

an uncle and a nephew, between an aunt and a nephew, or between an aunt and a niece, whether the relationship is by the half or the whole blood; (4) a marriage between cousins of the first degree;

however, a marriage between first cousins is not prohibited if: (i) both parties are 50 years of age or older; or (ii) either party, at the time of application for

a marriage license, presents for filing with the county clerk of the county in which the marriage is to be solemnized, a certificate signed by a licensed physician stating that the party to the proposed marriage is permanently and irreversibly sterile; (5) (blank). (b) Parties to a marriage prohibited under subsection (a) of this Section who cohabit after removal of the impediment are lawfully married as of the date of the removal of the impediment. (c) Children born or adopted of a prohibited or common law marriage are the lawful children of the parties. (Source: P.A. 98-597, eff. 6-1-14.)

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