Depending on where you live, if you marry before your divorce is final, you could conceivably go to jail. You have two spouses: the one you haven’t divorced yet and the one you just married. This is bigamy, and it is a crime in every state. Civil family laws treat the concept of bigamy somewhat differently; because your second marriage is illegal, it technically can't exist. You can still be prosecuted in criminal court, but you don’t have to divorce to end the marriage. You can annul it.
Definition of Bigamy
Legally, bigamy means being married to two spouses at the same time, both of whom are alive. They may or may not know about each other. If either of them is aware of the existence of your other spouse and doesn’t take steps to end the marriage, she is legally liable for bigamy also. Bigamy is different from polygamy, which generally involves multiple partners, all of whom know about each other and enter into the arrangement consensually.
Unless you entered into your second marriage for a fraudulent or illegal reason, such as monetary gain, your state may not pursue you to convict and sentence you for the crime. However, you still run the risk, and the stakes could be high. For example, bigamy is a felony in Wisconsin. In California, depending on the reason for your offense, bigamy is sometimes a misdemeanor. It’s punishable by up to a year in prison in California and a fine of as much as $10,000. Spouses who knowingly maintain a bigamous marriage might receive a somewhat lighter penalty. In some states, the prosecutor does not even have the burden of proof to convince a court that you’re guilty, unlike with other crimes. You have the burden of proof to establish your innocence.
Under the civil code of most states, a bigamous marriage is a “void” marriage. This means that some circumstance exists that makes it illegal from its inception. It can’t legally exist, so it can be annulled. However, either you or your second spouse would have to petition the court for an annulment to erase the marriage. It doesn’t happen automatically. After this is accomplished, it’s unlikely that you’d risk criminal prosecution unless some fraudulent factor also exists.
If you don’t annul your second marriage and your state does charge you with bigamy, you may have few options to prove your innocence. For example, in California, you can’t simply say that you thought your first spouse divorced you. Your only defense is generally that you haven’t seen your first spouse in at least five years, and you had reason to believe she was deceased. Your safest recourse is to immediately annul your second marriage so the problem no longer exists. Even an annulment takes some time in most states, but the fact that you’ve at least taken steps to rectify your mistake might help in your defense.