UTAH: “Unmarried” couple allowed to get a “divorce”

Ina and Neldon Johnson’s divorce could set new precedent in Utah?

Is Utah a common law marriage jurisdiction? I didn’t think so. Yet, a court allowed a couple who had lived together for 37 years and held themselves out as husband and wife, to obtain a “divorce” in the Utah courts. At issue was a $2.8 million property settlement and the husband’s failure to pay alimony as ordered. Well, he challenged the Utah Supreme Court’s jurisdiction over the case and his challenge was denied:


Ina Johnson sought a divorce and both sides agreed in 2001 on a $2.8 million property settlement under which Neldon Johnson would pay Ina Johnson $8,333 per month. However, since then Neldon Johnson has not paid alimony and has filed repeated challenges to the divorce decree, which all have been denied, according to the high court’s ruling.

As Ina Johnson tried to obtain alimony, Neldon Johnson insisted the divorce between them was not valid because the couple were never legally married. He filed a motion to vacate the amended divorce decree, arguing that the divorce decision was outside the court’s jurisdiction.

That motion was denied by a district court and Neldon Johnson then appealed that decision.

“We hold that the original district court that issued the Johnsons’ 2001 divorce decree did not lack subject matter jurisdiction and thus Mr. Johnson cannot collaterally attack it,” the Supreme Court wrote, adding that it affirmed the district court’s denials of Neldon Johnson’s motion to vacate the divorce decree. [deseret news]


Hme. Let me look into this a bit…..Ah….yes. Utah does allow a statutory version of the common law marriage. See, there are only 13 states in the Union that allow traditional common law marriages. Utah traditionally did not recognize common law marriage, but a statute was created allowing it. Utah Code Title 30….So, clearly, Mr. Johnson can’t get out of this divorce judgment and order to pay alimony and property settlement to his wife Ina. Thirty seven years of marriage, kids, joint assets, what does he expect? He has to pay like any other spouse. You divorce a common law spouse the way you do any other spouse, Mr. Johnson! See this post.

Some argue that this ruling will open the door to polygamy, same sex marriage and other void scenarios in Utah. I don’t see it. The Utah Code is pretty clear about what constitutes a common law marriage: Utah Code Section 30:


30-1-4.5. Validity of marriage not solemnized.
(1) A marriage which is not solemnized according to this chapter shall be legal and valid if a court or administrative order establishes that it arises out of a contract between a man and a woman who:
  (a) are of legal age and capable of giving consent;
  (b) are legally capable of entering a solemnized marriage under the provisions of this chapter;
  (c) have cohabited;
  (d) mutually assume marital rights, duties, and obligations; and
  (e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife.
(2) The determination or establishment of a marriage under this section must occur during the relationship described in Subsection (1), or within one year following the termination of that relationship. Evidence of a marriage recognizable under this section may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases.


Ina and Neldon fit the bill. I don’t see how a polygamous group or a same sex couple could successfully argue that they fit the definition of the Code