Nevada’s putative spouse doctrine gives community property protections to couples in void marriages if:
- they had a proper marriage ceremony (solemnization) and
- at least one of the parties genuinely did not know that a prior legal impediment kept them from being married.
Then if “putative spouses” break up, the same community property principles apply to them as they would to legally married couples. In other words, any property they amassed during the putative marriage is shared 50/50 (unless they had a contract stating otherwise).
The purpose of putative marriages is to protect couples who had a good-faith belief they were legally married and therefore believed that community property laws applied to them.
That way if the couple splits up and discovers the legal impediment that kept them from being lawfully married, then neither party can claim in bad faith that community property state laws are inapplicable.1
Is a putative marriage valid?
A putative marriage does not validate a void marriage. In Nevada, marriages are automatically and forever void if:
- the spouses are related by blood any closer than second cousins; or
- either party has a concurrent marriage to another person (“bigamy”).
However, if the spouses honestly did not realize that they were closely related or that a prior divorce was not finalized, then the putative spouse doctrine treats the property they accrued during their void marriage as community property.2
Is a putative marriage void or voidable?
The putative spouse doctrine applies only to void marriages. It does not apply to voidable marriages. Voidable marriages are marriages that are legal and valid but can be annulled on the following grounds:
- A spouse was under 18 years old at the time of the wedding, and parental consent was not obtained;
- There was a “want of understanding” between the spouses at the time of the marriage. This means there was a lack of consent due to insanity, mental disability, or something similar.
- At least one of the spouse’s consent was obtained through fraud.
- Any other reasons that can void a contract, such as duress.
For a voidable marriage to be annulled, one of the spouses has to petition the district court.3
People who believe in good faith they are married may be protected by the putative spouse doctrine.
What is the purpose of the putative spouse doctrine?
The putative spouse doctrine was developed to protect public policy and correct any potential injustice created when a marriage is not legal but one party truly believed it to be.
In other words, a putative marriage is a marriage that is actually a nullity but allows the civil effects of a valid marriage to transfer to the party who contracted in good faith.
Without the doctrine, the good faith contracting party would be left unprotected, especially in terms of monetary concerns. This protection allows the good faith spouse to enjoy the various benefits of marriage such as
- division of property and
- damages for wrongful death.4
Does the putative spouse doctrine apply to common law marriages?
Nevada law does not recognize common law marriages. Therefore, even if a couple believes in good faith they are in a common law marriage, Nevada’s putative spouse doctrine will not apply to them after the dissolution of the relationship.
Note that unmarried couples can always enter into a cohabitation agreement that outlines how the parties’ property will be divided if they split up.5
Related Topics
Legal References
- Williams v. Williams (Nevada Supreme Court, 2004) 120 Nev. Adv. Op. 64, 97 P.3d 1124 (“[A]ll states that recognize the putative spouse doctrine divide assets acquired during the marriage in an equitable fashion. We conclude that the application of community property principles to a putative marriage, as indicated in Sanguinetti v. Sanguinetti, is the better approach to the division of property in such cases.“). NRS 125.
- NRS 125.290.
- NRS 125.300.
- See note 1.
- NRS 122. Hay v. Hay (Nev. Supreme Court, 1984) .