Restrictions To Marriage
Even if all the basic requirements are met, a marriage license cannot be issued if certain factors are present. These impediments make the marriage void under the law.
Can I marry someone who is not an American citizen?
Yes. There are no restrictions as to the citizenship, nationality or race of the person you wish to marry.
Can I marry someone who is incarcerated in prison?
Yes. Inmates are permitted to marry. However, you must comply with the regulations of the prison where the person is serving their sentence. Prisons have visitor or family coordinators who will be able to provide you with information.
TIP: If you are marrying a federal prisoner, the U.S. Department of Justice's Bureau of Prison's website at www.bop.gov is a good source of information.
Void versus voidable marriages
Marriages may occur even though all the legal requirements are not fulfilled. The marriage will still be valid unless its basis is challenged; thus resulting in a voidable marriage. For instance, a minor may be able to obtain a marriage license by lying about her age. If she does marry, the marriage is valid unless the minor, a parent, or guardian petitions the court for an annulment. Additionally, if the challenge to the marriage does not occur before the minor turns of age, the marriage can never be challenged on that basis.
On the other hand, some marriages are so against public policy that they are null and void automatically under the law. In those circumstances, an annulment resolves any legal issues between the parties and dissolves the purported marriage. Void marriages are those where the "spouses" are:
- closely related (laws do not allow marriages between parents and their children, brothers and sisters, (including half-siblings), aunts and uncles); or
- already married to someone else.
Couples in void marriages have no rights to their spouse's property, income or assets. For example, if one person passes away, no inheritance rights vest in the living spouse. In that situation, even in a community property state, no community property could exist since the marriage did not legally exist.
My wife was already married when she married me. Is it necessary to get an annulment?
Yes. Although the marriage is null and void, your relationship should be legally severed by obtaining an annulment.
My husband and I never obtained formal divorces from our ex-spouses. Now that he has passed away, will I get the benefits from his retirement plan that generally pass to a spouse?
No. You are not a spouse and therefore have no legal right to the benefits. However, if you were named as the beneficiary of his retirement plan, your marital status is irrelevant and you would be entitled to receive payments.
My wife and I had several joint bank accounts. I knew she was married to someone else when we married. Do I inherit her share of the money?
No. The marriage is void, since at the time of the marriage your wife was legally married to another person and you were aware of that fact. Unless you were specifically named in a will, the law typically gives the right to inherit to her children or parents.
Can I marry my adopted daughter?
No. Laws prohibit marriages between a parent and a child, even where the child was adopted.
TIP: A marriage to an adopted child is also a criminal act because the relationship is incestuous. Incest is a crime.
SIDEBAR: In blended families, parents may legally marry their step-children if no adoption has occurred.
Capacity
A marriage is voidable if a person marries without the capacity, or understanding, that a marriage is occurring. A mental illness may incapacitate a person. Intoxication often results in a voidable marriage, as well. In these situations, the incapacitated person is entitled to an annulment. Additionally, a person who cannot perform sexually is considered incapacitated and an annulment can be granted on those grounds.
My elderly mother just married a much younger man. Isn't she incapacitated and unable to marry?
No. Age alone does not incapacitate a person so he or she cannot marry. You have to show that your mother was not capable of understanding what she was doing when she married the younger man.
SIDEBAR: Eccentricity is not incapacity.
Minors
In the United States, a person must be at least 18 years old to marry (some states require the parties to be older than 18) without parental consent. However, minors who do marry have a valid marriage until it is annulled or voided. Additionally, a married person or spouse, regardless of age, is generally given adult status under the law. For example, a married minor can enter into contracts.
I lied about my age and used altered documents to obtain a marriage license. Is my marriage valid?
Yes, if you have since turned the legal age for marriage in your state.
SIDEBAR: Underage marriages are valid marriages until they have been voided or annulled by a court order.
SIDEBAR: Once married, the minor becomes "emancipated" and remains emancipated until the marriage is voided or annulled.
I'm a minor. Can I have a common law marriage?
No. Although common law marriages are recognized in some states, a common law marriage is void for someone who is a minor.
TIP: A spouse cannot inherit from his common law wife who was a minor at the time of her death.
My underage daughter got married in Mexico. Can I have the marriage annulled?
Yes. Since your daughter is underage, her marriage is voidable. As her parent, you can file a petition with the court requesting an annulment.
My son was married in another country when he was 16 years old. He has since died and I want the marriage declared void. Can I have it annulled?
No. You could only file your petition for annulment while your son was alive. The death of a spouse means the marriage can no longer be challenged.
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