Tuesday, December 13, 2011

Is Annulment an Option?

by Wendy Alton

So Kim Kardashian files for divorce, and her husband Kris Humphries files instead for an annulment, listing fraud as the grounds for his request. Does he have a chance at succeeding, and what exactly is an annulment?

In the state of Michigan, you can end your marriage by filing for one of three things: divorce, separate maintenance (legal separation), or annulment. An annulment is only granted if the marriage itself was void from the beginning or the marriage is voidable.

A void marriage in Michigan is a marriage that could not have taken place legally from the beginning. What this means is that there was consanguinity, affinity, bigamy, minority, incapacity or incompetency. In simple, plain English, this means the following:

· Consanguinity: you married a blood relative prohibited by law.
· Affinity: you married a blood relative of your spouse prohibited by law.
· Bigamy: you married someone who was already married.
· Minority: you or your spouse is under the age of 16, or between 16 and 18 and you didn’t get a parent’s consent.
· Incapacity & Incompetency: you or your spouse has a mental illness or is mentally incompetent to the degree that you or your spouse cannot enter into a contract.

Marriages that are void as a matter of law (examples above) can be ended with an annulment.

Voidable marriages in Michigan mean marriages that can be voided for fraud, duress, sterility and impotence. Sterility and impotence must be incurable. In order to have your marriage annulled for these reasons, you must file for an annulment within two years of the marriage. Examples of fraud and duress are as follows:
· You marry someone to obtain a green card (for immigration purposes only).
· A person is induced to marry because they are told that a child is biologically theirs, and this turns out not to be true.
· You marry under the influence of drugs or alcohol.
· You marry someone who is barren or sterile and they do not tell you.
· You marry because you are threatened. (duress)

The grounds for a voidable marriage must be proven with clear and convincing evidence in order to obtain an annulment.

There are, however, defenses to annulment. This is particularly so if the spouse finds out about any of the reasons above and still lives with the other person even after finding out. Cohabitation is a defense, and can overcome any request for an annulment based upon voidable grounds.

Whether or not Kris Humphries will succeed with an annulment remains to be seen. Fraud can be difficult to prove, and it is something he has to prove with clear and convincing evidence. Just the fact that the marriage was short-lived is not a basis in and of itself to seek an annulment. In any case, it should prove interesting to see if the annulment moves forward or if the court determines that there is no basis, and will only grant a divorce.

Read the USA Today article here: Kris Humphries files to annul on grounds of fraud.

If you are interested in learning more about family law or divorce, or have a question about those issues, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.

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