In the absence of common law marriage, judge affirms spousal rights of Baldwin County widow

Forty-nine-year-old Joseph Harvey Precise Jr. can finally rest in peace. His body had been held at the Baldwin County Coroner’s Office for 20 days last Wednesday when his mother, Julia Precise, and his wife of three years, Jessica Precise, met in Judge Jody Bishop’s courtroom.

A disabled coal miner and estranged father of six — he conceived a pair of 17-year-old twins and a set of 14-year-old quadruplets with his ex-wife Dalynda “Hope” Precise — Joseph died suddenly May 6 of natural causes.

Baldwin County Coroner Dr. Brian Pierce said his office typically examines all unattended deaths and the final disposition of remains is settled by the next of kin.

“There’s generally a pecking order beginning with the spouse if the decedent is married, a parent if single, a sibling if there is no parent, cousins, aunts or uncles and on down the line,” he said. “But it has gotten more confusing since common-law marriage was abolished in Alabama, and if anyone contests the possession of the remains, the judge of probate is typically required to verify. But unfortunately this is a situation where the gentleman who passed away has some family issues.”

According to testimony, Joseph and Hope had been parties in a “high-conflict divorce,” a contested proceeding where details such as custody arrangements and child support obligations may not be determined until years after parties separate.

Joseph and Hope separated on Sept. 5, 2015 and Joseph filed for divorce a month later. The following summer, as the divorce action was pending, Joseph met Jessica, who had never been married and had no children.

On July 18, 2017, a hearing commenced in Shelby County where a judge recognized the divorce, although the final judgment was not signed until Sept. 19. Joseph and Jessica were married on Sept. 27, 69 days after the court hearing, but just a week after the paperwork was timestamped.

When Joseph died earlier this month, his mother claimed his marriage to Jessica was void, citing the 60-day waiting period to remarry after a divorce. Julia filed suit against Jessica and Pierce, further arguing Jessica couldn’t claim common-law marriage because the state abolished its recognition in January 2017.

“The argument is over who has custody of the body and who has legal authority to decide the burial arrangements,” the plaintiff’s attorney, Blake Lowe, told the court. Both parties testified their relationship was “toxic,” and although there had been some improvements over time, Julia would never recognize the validity of the marriage.

“She never accepted me or our marriage,” Jessica testified. “She only spoke two sentences to me in four years, one time threatening to hit me with a McDonald’s tray and the other time to call me evil.”

Julia said her relationship with Joseph was improving, and speculated he only rushed to remarry Jessica because the divorce agreement prohibited the children’s visitation with Joseph if he was unmarried and cohabiting.

“I accepted he was in a relationship with Jessica, but not the marriage,” Julia said. “How can I accept something that’s not true?”

Joseph’s mother said he wanted a traditional funeral and burial near Montgomery, in a location that would be convenient for his family to visit. His wife said those weren’t his intentions at all, that Joseph was adamant he be cremated without his family viewing his body. Jessica told the court they had discussed buying necklaces for each of his children, with lockets for his ashes.

The six children were also named as plaintiffs in the complaint, but Bishop dismissed them before the hearing because they were not 18 years of age.

Like more than half of Americans, Joseph Precise died without a will. But crucially, he also lacked a more simple document officially authorizing an “agent for the right of disposition,” said attorney Mary Murchison, who represented Jessica in the case.

“This is probably a case of first impression,” Murchison told Lagniappe last week. “You’ve heard the term ‘unintentional consequences,’ but when they abolished common-law marriage, this is one of the things that happened. We have an antiquated statute known as the 60-day prohibition after divorce preventing you from remarrying anyone but your former spouse. But recently, you have a line of cases in [the Supreme Court of the United States] defining marriage, talking about the fundamental right to marry. Today, you have to have a pretty high state interest in interfering with those rights and [the 60-day law] does not rise to a level that would deprive someone of fundamental rights.”

Murchison cited the landmark civil rights case Obergefell v. Hodges at the federal level, but also a state case, Krug v. Krug, decided after a recently married man was killed while deployed in the Vietnam War. Raymond and Clara Ann Krug were married in Georgia on Dec. 31, 1969, just a week after Clara Ann divorced her first husband in Coffee County, Alabama.

In the days before he was deployed on Jan. 19, Raymond named Clara Ann as his life insurance beneficiary, opened a joint account in their name, executed a will leaving all property to his wife and gave her power of attorney. In the months before he was killed in a helicopter crash on May 14, “they exchanged letters almost daily and tapes frequently. He addressed her mail to Mrs. Raymond H. Krug Jr. He wrote of his desires to start a family and he started a bond allotment to her and the bonds were made payable to her and to him.”

After his death, Krug’s parents contested his marriage to Clara Ann, citing the 60-day restriction. But the Alabama Supreme Court recognized the protections afforded under common-law marriage.

“It is the well-settled ruled 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, the law presumes a common-law marriage,” the court found. “The only obstacle or impediment to this marriage in Alabama was the 60-day waiting period, and once that passed, a common-law marriage would be presumed.”

But with common-law marriage no longer part of the equation, the Precise case would target the 60-day waiting period.

“Do we take somebody’s fundamental right away with an artificial prohibition on remarriage, or do we recognize if these people acted in good faith, tried to follow the law and were in a committed relationship?” Murchison asked. “This was a real marriage — this man loved this woman and he was coming from a horrible divorce. For the first time in a long time he was happy. Ultimately it will come down to [Jessica’s] spousal rights as a wife. It’ll be very troubling if it’s stripped. What’s most important is she knew his final wishes and she couldn’t carry them out because these people came in and said you’re not his wife.”

In an order signed Thursday, Judge Bishop agreed. Pierce was ordered to release Joseph’s remains to his wife.

“The defendant presented a valid marriage certificate showing she was the legal spouse of the deceased,” Bishop wrote. “The validity of said marriage was not challenged by either of the parties to the marriage or any other party, including the plaintiff, while the husband was alive … Marriage is not only recognized by the courts as a fundamental right, but a ceremonial marriage is encouraged by public policy for the stability of the family and society. At the time of the defendant’s marriage to the deceased, his divorce decree was final and had not been appealed. The court finds there is no existing compelling public interest in setting aside the marriage … and rejects the arguments of the plaintiff to do so.”