When is a Marriage Defunct
Updated: Aug 14, 2020
Your marriage being defunct may not be as simple as filing court paperwork. The court looks at your intent when determining that your marriage is defunct. Some even believe that both parties need the requisite intent for the court to declare a marriage defunct. Some factors that go into deciding intent include:
Whether you live is separate locations
Whether you filed for separate maintenance or divorce
Whether you gave public notice of your defunct status, i.e. in a newspaper or to creditors.
Whether the parties have a separation contract (weighted heavily)
Talk to a lawyer first if the characterization of an asset or labeling of a debt is based on a date before or after your date of separation.
In order for the court to find the date that marriage became defunct the court has to find either that the spouses were living separate and apart or that the marriage was defunct based on the parties intent.
The court is more likely to find a defunct marriage if a creditor is not involved.
How does a defunct marriage affect community property? Even after the marriage is defunct each spouse is allowed to manage the community property to benefit the community.
If your marriage has defunct for years then the court may view marriage as a short term marriage.