US family law
You have found summer employment with the West Carolina law firm of Herrera & Smith, which specializes in family matters. For the past two years the firm has represented a client named Eloise in what everyone involved has assumed were divorce proceedings. Eloise and Karl, a professional couple then in their fifties, had been dating for two years when they agreed in 2012 to marry in West Carolina. Each had grown children from prior marriages, and since those children would be home for the holidays they decided to hold the wedding on December 26, 2012. They asked Karl’s cousin, Marvin, an ordained minister who lived in West Carolina a couple of hours away, to officiate at a wedding in the spacious suburban home they had just purchased. As their wedding approached, Eloise dipped into savings she had amassed during a successful career in interior design to make substantial investments in a new internet security firm that Karl was launching. From prior experience, they both knew that they needed to apply for a marriage license, but other tasks related to the holidays, the planned wedding, and Karl’s new business wound up assuming greater priority.
On the evening of December 26, friends and family members were poised to arrive at their home while Marvin was reviewing last-minute details of the ceremony with Karl and Eloise. When Marvin asked for their marriage license, Eloise and Karl glanced at one another sheepishly. “We still have to get that,” said Karl. “Yeah, okay, just make sure to do it soon because I have five days from tonight’s ceremony to file the documents,” replied Marvin. Already overwhelmed with the caterers, the flowers, and the fashion crises of her 22-year-old twins, Eloise began to panic. Marvin patted her arm reassuringly, saying, “No worries, Eloise. Focus on this happy occasion. We’ll deal with the paperwork later.”
Marvin presided over a non-denominational ceremony at which Karl and Eloise pledged their enduring commitment to one another. They celebrated afterward with more than fifty guests. Over the next few days, the couple shuttled themselves and their adult children around to spend time with various relatives, and finally, on December 31, boarded a cruise ship for a weeklong honeymoon cruise. It was only once they caught their breath on the cruise ship that they remembered the license. On January 8, upon their return, Karl and Eloise went together to the county clerk’s office to apply for a marriage license. After they filled out the application, Eloise had to rush off to an appointment; Karl assured her that he would drop their license in the mail to Marvin. Eloise kissed Karl goodbye and Karl headed for the post office, receiving an important business call while en route. Because of that call he returned immediately to his office and didn’t mail out the marriage register, containing the license and certificate, until January 10. When Marvin received the register two days later, he executed the marriage certificate and verified that the parties were married, dating it January 12, 2013 rather than December 26, 2012.
Karl’s business flourished and their marriage remained happy for the first several years, but in early 2020 Eloise discovered that Karl had begun sexting regularly with an old high school
girlfriend, with whom he had reconnected at a recent reunion. Upon advice of their attorney, they drafted a marital agreement, intended “to furnish the foundation of a divorce instrument, should that come to pass.” Under the terms of the agreement, Karl would supply Eloise with $12,000 a month, pay her health insurance premiums, and, if he decided to sell his business, guarantee her 35% of the proceeds. He would also allow her to retain their home while he paid off the
remaining mortgage. Karl moved out of their home to a luxurious apartment in Centerville, West Carolina, although both professed a hope that they might reconcile.
For the first year Karl made monthly payments to Eloise pursuant to this agreement. When COVID shutdowns began in March of 2020, Eloise’s twins moved in with her. By 2021, it became clear Eloise and Karl had only grown further apart. Both retained separate counsel, with Eloise represented by Herrera & Smith, and they filed jointly for divorce on the ground of irreconcilable differences. Not surprisingly, however, when the firm of Herrera & Smith sought to incorporate the terms of the couple’s marital agreement into a final divorce settlement on behalf of Eloise, disputes arose with Karl concerning the financial details. Eloise and Karl have been litigating these disputes in West Carolina family court for the past year and a half.
Last month things took a truly surprising turn: Karl’s lawyer evidently discovered that the date on their marriage certificate (January 12, 2013) differed from the date of their December 26, 2012 ceremony. On this basis, he filed a motion arguing that their marriage was void ab initio, or a nullity under the law, and therefore the family court has no jurisdiction to grant a divorce at all. In support of his argument, he cites several provisions of the West Carolina General Statutes governing the formal requirements of a valid marriage. According to § 48-11, “[e]very marriage in this State shall be under a license and solemnized as herein provided.” If solemnization does not occur within sixty days of the issuance of the license, the license expires and the parties must make a new application if they wish to marry. Pursuant to § 48-15, “A person solemnizing a marriage shall, within five calendar days of the marriage ceremony, complete the original application, license and record of marriage form and deliver the form.” Indeed, under yet another provision of West Carolina law, any person who “knowingly perform[s] the ceremony of marriage without a lawful license” potentially faces up to one year’s imprisonment and a fine not to exceed $500. West Carolina does not recognize common law marriage.
Attorneys Herrera and Smith have asked you to draft a memorandum that outlines any arguments the firm should make on Eloise’s behalf. Did she and Karl have a valid marriage? Can you tell from these facts whether or not they complied with the procedural requirements of West Carolina marriage law? What else might you need to know? If a court finds that they did not satisfy the procedural requirements of a valid marriage, what potential implications might follow? Are there any alternatives that might protect Eloise’s interests?