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S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2512
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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I have a question that can be answered fairly easy I hope, I

Customer Question

Hi,
I have a question that can be answered fairly easy I hope, I was wondering if you could advice me on.
In 2004 my then fiance, who was and is incarcerated) wanted to get married. We already called ourselves husband and wife and even exchanged some simple vows when it looked as though the process with getting approval to marry from the prison might take years.
At the prison he was then incarcerated at, the chaplain had a very lengthy process they conducted, including questioning me whether I knew of his crime, my relationship with my father and first husband, etc...
In the process of going through this, the chaplain found a letter from my husband to the girlfriend who was arrested and incarcerated as well for the first time, asking the prison permission to write her because she was his wife. He did this because PA prisons forbid one prisoner to write another prisoner unless they are married or family. Based on this one letter, the chaplain deemed them married and then decided that he would have to divorce her for us to get married.
Although he was adamant he never wanted to marry her or was married to her or ever intended to be married to her, the prison was not going to give us permission to marry unless he obtained a divorce from her, which he did in early 2004.
Once he obtained his divorce, we continued to consider ourselves husband and wife, but never even stopped to realize that the very laws that was used against him to force him to get a divorce from a woman he never wanted to be married to, we actually were common law married (we have letters to each other and letters to his attorneys at the time referring to ourselves as husband and wife and we certainly maintained that wish and presented ourselves as married. I had even legally changed my name to his last name when my divorce became final with my first husband in 2003.
After 18 months of trying to get the Chaplains approval of getting married with no end in sight of the hoops we were having to jump, I found a way to get married by proxy in Montana, which we did in July 2005.
My question therefore is, was the marriage in 2005 valid since we were already common law married?
Further still, if the marriage in July 0f 2005 was invalid, would our divorce I obtained in 2011 to dissolve the 2005 marriage, negate the common law marriage since the 2005 marriage was invalid?
We are trying to remarry without going the proxy route, but it dawned on us today that we may still be common law married from back as far as 2003 (considering he still does not believe he was ever married to the woman he had to divorce)when we began calling ourselves husband and wife and I even had the same last name, regardless that we married in july of 2005 and then had the 2005 married dissolved in 2001.
Thank you for reading such a long question. I'm hoping the answer will be much more straightforward than the question.
Submitted: 1 year ago.
Category: Family Law
Expert:  S. Kincaid replied 1 year ago.

Interesting question. I will address each issue in turn.

1) Were you common law married. To have been common law married in Pennsylvania before 2005, you would have to have declared the "present intent to enter into marriage." This does not mean you declared the intent to get married, but rather to be married. If the two of you did that prior to January 2, 2005, you may have been common law married, although there may have been no record of that marriage.

2) If you were common law married, would the licensed marriage be invalid.. The answer is no. Because common law marriage is often hard to prove, many people eventually choose to get a licensed marriage. It doesn't change the original date of marriage, but it does provide as a back up date if the common law marriage is every contested and determined to be invalid.

3) Would the dissolution have left one of the two marriages intact? No. A dissolution/divorce returns you to the status of unmarried persons. Whichever marriage is recognized by the state, will be dissolved. So if you divorced, you are now unmarried and must remarry. Dues that fully answer your questions?

Customer: replied 1 year ago.
we thought that might be the answer but thought we might get lucky and get a favorable answer.Thank you
Expert:  S. Kincaid replied 1 year ago.

Lol. And good luck! If you have no further questions and have not already done so, I'd appreciate if you would accept my answer so that I may get credit for my work.