Q. My husband and I have been negotiating our divorce for the last 9 months using a mediator. We have two kids and a lot of real estate. We finally reached and signed an agreement. We were on the verge of signing the rest of the joint divorce paperwork when I got a shocking call from the mediator which I am still having trouble understanding.
It seems my husband was married before he married me, something I did not know, and that we were married during the nisi period. The mediator says this means what I thought was a 12 year marriage was not real. I don’t understand what a nisi period is or how it is possible we are not really married. What can I do?
A. The nisi period is a 90 day waiting period after the parties appear in court for a divorce hearing. The idea is to give the parties time to make sure they don’t want to change their mind and stay together – sort of a legal cooling off period. From a legal perspective, there are two important points during that period. Because the couple are still legally married – (1) they can still file joint income tax returns during that period and (2) neither party can marry someone else. If the mediator is right and your husband did marry you during the nisi period, he was legally married to someone else at the time of your wedding thus rendering your marriage void.
You have a signed agreement which is a contract. Arguably your contract is enforceable regardless of the legality of your marriage. Make sure your agreement contains the fairly standard clause which states if any part of your contract is deemed invalid, the remainder of the agreement is valid. Assuming it does, you should take the position that your contract is enforceable and you will operate according to its terms.
If your husband is cooperative, you can go the route of filing a complaint for custody in the probate and family court instead of the divorce complaint and ask that the parenting plan stated in your separation agreement be incorporated into a judgment in the custody case.
The complicated piece involves the clauses of your agreement which are no longer enforceable. In a divorce, division of the marital assets when one party has to transfer property to another is not a taxable event. If you are not married, there may be tax consequences to your property division plan. Also you may run into issues if you have been filing joint income tax returns. You need to hire both a divorce lawyer and a tax lawyer at this point to help keep you out of tax trouble and possibly restructure the asset division in light of tax issues.
Because your “husband” was not honest with you at the time of the marriage and created this mess, you should look to have him pay the additional costs you incur in untangling his web.