Bigamy Laws, Claims, & Defenses

What is Bigamy?

 

Bigamy is the act of marrying a person who is already married. More precisely, bigamy occurs when a single person marries another person who the single person knows, or reasonably should know, is already married to someone else. It is also considered bigamy for a married person to marry another person when the married person knows, or reasonably should know, that he or she is already legally married to someone else.

Note: Bigamy, also called a bigamous marriage, is not necessarily a criminal act. Bigamy is only a crime when the person knows that he or she is entering into a bigamous marriage.

The following article is a summary of the law, the punishments, the defenses, and the remedies, related to a bigamous marriage. Both family law and criminal law issues related to bigamy are discussed. For further information on bigamy, contact our family law and criminal defense lawyers for a free consultation.

Family Court: Family court considers a bigamous marriage to be void and invalid. Bigamy is not charged as a crime in family court, but rather, bigamy is as an allegation that supports a request for annulment. An annulment, also called a nullity of marriage, is a request for the family court to recognize a marriage as invalid and voided as if the marriage never occurred.

Generally speaking, annulment paperwork is not necessarily needed to invalidate a bigamous marriage because a bigamous marriage is not valid in the first place; however, a person who entered into a bigamous marriage, but who otherwise did not know that he or she entered into a bigamous marriage, might want to be considered a putative spouse (apparent spouse).

Putative Spouse: Status as a putative spouse allows the putative spouse to receive an equitable division of property acquired during the apparent marriage similar to an equal division of community property. A putative spouse might allow be allowed to recover an equitable division of property acquired during the apparent marriage sufficient to make up for any loss that might have otherwise been realized as "spousal support" if the parties were in fact legally married.

For example, if wife married husband, but husband was already married at the time wife married him, and wife did not know that her “husband” was married when she married him, then wife might be entitled to own a percentage of the property acquired during that apparent marriage.

Note: The property acquired during a bigamous marriage is not classified as “community property,” which is ordinarily subject to equal division upon divorce or legal separation. Nevertheless, the family law court will usually create a remedy for a putative spouse that approximates the division of property acquired during marriage as though that property was classified as community property.

Note: As stated, family law judges do not automatically refer bigamy cases to the criminal court. This is because entering into a bigamous marriage is not necessarily a crime. However, when a bigamy case is referred to criminal prosecutors, and if the party who is alleged to have committed bigamy is ultimately found guilty of bigamy, then the putative spouse might be entitled to restitution equal to amount that he or she otherwise would have received in community property if the marriage was actually valid.

Example: Husband attempts to obtain a divorce without following the proper divorce procedures. Thereafter, husband remarries without realizing that his prior marriage has not been properly dissolved. In this scenario, husband is not liable for criminal bigamy because criminal bigamy requires an element of knowingly entering into a bigamous marriage and the family law court does not. Nevertheless, husband's apparent wife (putative spouse) could receive a division of property acquired during marriage that is equal to the amount of property that she would have received if the marriage was valid and the property was therefore classified as community property.

Annulling a Bigamous Marriage: A bigamous marriage may be annulled (voided). The burden of proof in annulment cases is by a preponderance of the evidence, which means that the petitioner filing for an annulment only needs to prove to the family law judge that, more likely than not, the parties enter into a bigamous marriage, regardless of their intent to do so.

Warning: Any statement, oral or written, made in family court, may be used against the statement maker in criminal proceedings. Always seek the advice of a family law or criminal defense attorney before filing for a nullity of marriage based on claims of bigamy.

Important: An annulment of a bigamous marriage may void the presumption of paternity (parentage) for children born during marriage. This means that a bigamous marriage that is legally voided through annulment could require a biological father, who was party to the bigamous marriage, to establish paternity before petitioning the court for child custody, child support, and/or child visitation (parenting time). This is why annulments based on bigamy will usually have joint filings related to a paternity suit.

Spousal Support: A putative spouse is not entitled to spousal support (alimony) because a bigamous marriage is void ab initio (from the beginning). Nevertheless, a family law court may grant an equitable division of the property acquired during the marriage to a putative spouse; that amount awarded would be intended to offset the loss of spousal support that the putative spouse would have enjoyed had the marriage been valid.

Bigamy in Criminal Court

To prove bigamy in criminal court a district attorney must prove that the defendant knowingly entered into a bigamous marriage. The burden of proof in criminal court is proof beyond a reasonable doubt, which means that the district attorney must prove to an abiding conviction that the bigamy allegation is true. The burden of proving bigamy in criminal court is much higher than the burden of proving bigamy in the family law court.

Punishment Sentence for Bigamy

In California, the crime of bigamy is considered a wobbler charge, which means that bigamy may be charged as a misdemeanor or as a felony. Both misdemeanor and felony bigamy charges are filed under California penal code section 281 (PC281).

Whether or not the district attorney files bigamy charges as a misdemeanor or as a felony depends largely on the circumstances of the individual case, including the level of deceit involved in the case, the harm caused to the putative spouse, the defendant's criminal history, and more.

Jail: Felony bigamy criminal charges carry a maximum punishment of a three year jail sentence. Misdemeanor bigamy criminal charges carry a maximum punishment of a one year jail sentence.

Probation sentence: A probation sentence is a period of supervision, as opposed to an actual jail sentence. Probation sentences carry terms of probation that must be followed by the defendant in order to remain on probation and out of jail. The terms of probation in a bigamy case are designed to punish the defendant as well as rehabilitate him or her. In any event, a probation sentence for misdemeanor bigamy is considered informal and informal probation is supervised by the court; a probation sentence for felony bigamy is considered formal and formal probation is supervised by a probation officer.

PC 1170(h) Sentence: If found guilty of bigamy in criminal court, the defendant may face jail or probation. If the defendant is ordered to serve an actual jail sentence, then that jail sentence is served in a local county jail, as opposed to a California state prison. This is true regardless of whether or not the defendant is found guilty of misdemeanor bigamy or felony bigamy.

 

Also, a jail sentence related to a criminal bigamy conviction may be split (served partially in jail and partially out of jail on work release or house arrest, or suspended (not served unless the defendant violates a condition of his or her out-of-custody sentence).

Note: Criminal bigamy is considered a moral turpitude crime, which means that the law considers criminal bigamy as morally wrong and/or is a crime that involves deceit. Moral turpitude crimes in a person's criminal history may lead to deportation from the United States (for non-US citizens), loss of a professional license (i.e. doctor, dentist, lawyer, etc.), lose the right to enter into, or remain in, the armed services (Army, Navy, Space Force, Marines, etc.), and negatively impact the defendant's reputation for truthful testimony in subsequent legal proceedings.

In addition to a possible jail sentence, if found guilty of bigamy, the defendant could face any of the following penalties: fines and court fees, restraining orders, civil lawsuits, restitution orders, loss of right to own firearms (in felony cases), and more.

Defense to Bigamy Charges

Lack of Intent: It is not uncommon for persons to file for divorce without the assistance of a divorce attorney. Sometimes, this leads to improper use of procedures required to finalize the divorce; thus, the spouses remain unknowingly married. Thereafter, one of the spouses remarries without realizing that he or she is still legally married to his or her first spouse (because the first marriage was not finalized correctly). In this typical scenario, the defendant facing criminal bigamy charges may argue that he or she had a good faith belief that his or her prior marriage was dissolved.

Other Common bigamy defenses: duress, insanity, coerced confessions, insufficient evidence, illegal search and seizure, and more.

Note: A defendant charged with felony bigamy in criminal court may sometimes have that felony classification reduced to a misdemeanor classification. This is not a true defense in the sense that the criminal charges are dismissed or the defendant is found not guilty, but rather, a reclassification is a reduction from felony to misdemeanor charges.

 

Whether or not the judge or prosecutor will reduce a felony bigamy charge to a misdemeanor bigamy charge depends on the many factors, including the sophistication of the defendant’s crime, the criminal history of the defendant, the harm suffered by the putative spouse and others, and more.

For more information on bigamy law, punishment, and defenses, in both family court and in criminal court, contact out bigamy defense lawyers today for a free for consultations. Our attorneys have successfully handled thousands of cases in family law and criminal defense. We offers services related to bigamy, annulment, divorce, legal separation, child custody, fathers’ rights, domestic violence restraining orders (DVRO), juvenile dependency court hearings, and more. Call today!

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