Family Law Corner: Dashing for Divorce
The Kim Kardashian and Kris Humphries wedding was a $10 million dollar (according to most reports) televised extravaganza. Who knew the resulting marriage would only last 72 days? In a move reminiscent of Britney Spears famous 55 hour marriage, Kardashian has filed for divorce after less than three months.
While the tabloids argue over why Kardashian and Humphries are splitting, annulment would seem to be an attractive option allowing both parties to erase this marriage. However, Kardashian likely chose divorce over annulment because of the requirements under California law for an annulment. Unlike Spears, who obtained a Nevada annulment (and could do so because she got married in Nevada) for her short marriage, Kardashian must seek termination of her marriage in California because she is a California resident.
In a California annulment, the party seeking the annulment (the Petitioner) must allege one of the following grounds: incest, bigamy, minority (i.e. Petitioner was under age 18 and did not have parental/court consent), bigamy, unsound mind, fraud, force, and physical incapacity. (Family Code §2200 et. seq.). The Petitioner must allege that one of these grounds existed at the time of the marriage. For two of these grounds, incest and bigamy, the marriage is void meaning from the outset, the marriage did not exist regardless of whether a nullity judgment is obtained. For the other grounds, the marriage is only voidable and is a valid marriage unless it is judicially determined a nullity.
One benefit of an annulment is that the judgment is effective immediately, but the parties have to assign blame, which they do not have to do in California divorce or legal separation. This means that attorneys’ fees and costs are available to the party innocent of the wrongdoing. (Family Code §2255). Furthermore, a finding of fraud against a party may be used in another court as evidence of lack of truthfulness or as a prior bad act (Federal Rules of Evidence §§608; 609) leading to unintended consequences.
If the tabloids are to be believed, Kardashian and Humphries have a signed pre-marital agreement. If true, that fact would play a significant role in the decision to seek divorce or nullity. The parties would be better off sticking with the agreement they reached rather than seeking judicial intervention and possibly not getting the terms they both bargained for.