About this “60 Days” Thing

Alabama law makes it illegal for either spouse to remarry within 60 days after the divorce. Here’s the language in the statute, specifically Ala. Code § 30-2-10:

Time limit on remarriage. When a judgment has been entered granting a divorce in this state, the court shall order that neither party shall again marry, except to each other, until 60 days after the judgment is entered, and that if an appeal is taken within 60 days, neither party shall again marry, except to each other, during the pendency of said appeal.

Questions People Tend to Ask

Is a marriage during the 60 days after the decree void, or does it just raise a chance we’ll get in trouble?

That’s a harder question to answer than you might realize. First, the Alabama Supreme Court has ruled that the answer to the first question is yes, the marriage is void. Brand v. State, 6 So.2d 446, (Ala. 1941). However, whenever this principle comes up nowadays the court mentioning it typically follows the citation with a reference to Alabama’s recognizing common law marriage. In Alabama, even if two people are not ceremonially married, they can become married at common law. “It is the well-settled rule that if parties in good faith marry when in fact a legal impediment exists to their marriage, and they continue to cohabit as man and wife after the removal of the impediment to their lawful union, the law presumes a common-law marriage.” Krug v. Krug, 296 So.2d 715, 718 (Ala. 1974).

So, in the unlikely event that Roberto and Daphne marry a week after Daphne’s divorce from Hubert, and then 30 minutes later Daphne insults Roberto’s lacrosse technique, they storm off angry with each other, and never get together again, it’s reasonably safe to say they’re not married. But that’s rarely the way life or love works. If Roberto and Daphne return to their home together and enjoy a night (yeah, technically, even one night) of wedded bliss, they’re now potentially married at common law. And once married at common law, they have shed the impediment of that whole 60 days thing.

Is it 60 days after we sign, or 60 days after the judge signs the decree, or 60 days after I receive the decree?

It’s 60 days after the judge signs the Final Judgment of Divorce.

What will happen if I violate it?

Theoretically, you could be prosecuted for bigamy, which is a Class C felony. I say “theoretically” because I’m not aware of any prosecution, let alone successful prosecution, of a person on the grounds that he or she remarried too early. That having been said, that would be quite a bummer for remarriage, wouldn’t it? Why not wait and know you’re legal, and then you won’t have to worry about it.

Can we go to another state and remarry earlier?

Alabama courts have ruled that the post-marital restriction against remarriage has no extraterritorial effect. This means that a person can travel to another state, marry there, and remain there, secure in the knowledge that the marriage is valid and that neither party can be prosecuted. However, if they return to Alabama during the 60 day prohibition, the spouse who violated the 60 day restriction could be prosecuted.

Now here’s an interesting point. That party who returns to Alabama within the 60 day period is vulnerable. However, because Alabama recognizes common law marriage, once the 60 days has passed, if they both have a present intention to be husband and wife, cohabitate, and hold themselves out to the world to be married, they may very well accomplish their marriage anew as a common law marriage.

You don’t want to rely on this, of course, because the court will closely scrutinize a claim of common law marriage and require convincing proof of it. By far the more prudent course would be to simply chill. Wait 60 days. If your marriage was meant to be, it will survive.

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