ANNULMENT VS DIVORCE 810-235-1970

Annulment vs. Divorce: How it impacts finances

The Kim Kardashian-Kris Humphries marriage split has been called everything from a distraction to entertainment, but if the couple’s union is annulled — as Humphries is reportedly trying to do — it may actually prove to be a lesson in how some couples can avoid some of the financial disputes that come with divorce.[1]

IN ANNULMENT THE MARRAIGE IS TREATED LIKE IT NEVER HAPPENED

Unlike divorce, which recognizes that a marriage has an official beginning and end, an annulment retroactively declares the marriage to be null and void. “When a couple gets an annulment, it’s as if the marriage never existed to begin with,” says Kristin D. Hofheimer, a divorce attorney in Virginia Beach, Va. [1]

ANNULMENT IN MICHGIAN

An annulment is a judicial determination that a valid marriage never took place. See MCL 552.1–.4. Annulment is the appropriate means of dissolving two kinds of marriages—those that are void ab initio and those that are voidable. If a marriage is void ab initio, it is deemed never to have taken place since it was void from the beginning. Theoretically, no legal process is required to dissolve a marriage that is void ab initio, although judicial action may have to be taken to resolve any property disputes; clarify the rights of any children of the marriage; and prevent any subsequent complications, such as problems with creditors.[3]

In contrast, if a marriage is voidable, it is valid until one of the parties brings an action to have it annulled. The action must be brought while both parties are living, and until a court declares the marriage annulled, it is legally binding.[3]

IN ANNULMENT YOU GET ALL YOUR MONEY BACK

What that means for your finances is this: In an annulment, the courts do their best to restore the individuals to their original financial state. So, what money and property you brought into the marriage is what you should walk away with, including any debt you brought into the marriage.[1]

ANNULMENTS ARE NOT FAVORED BY THE COURT

Joint assets and debt accumulated together during the marriage are typically divided equitably.
But qualifying for an annulment isn’t a walk in the park, as certain grounds must be met in order for it to be granted.[1]

WHY SHOULD ANNULMENT BE DIFFICULT?

Here are some of the more common reasons an annulment may be allowed:
If fraud or concealment is involved, such as one party keeping important information from the other, such as a drug addiction or a felony.
The refusal or inability of one party to consummate the marriage.
The determination that the two parties are close relatives and are in an incestuous marriage.
The determination that one or both parties were unable to consent to marriage because of a lack of understanding, such as the case of someone who is mentally ill.

HOW LONG CAN YOU BE MARRIED

While marriages of any length can be annulled, many states have time limits for filing based on when the grounds for annulment took place. For example, in Illinois, if you want to get an annulment because of fraud, you have 90 days to make the claim after you learn about the fraudulent event. In Minnesota, if you want an annulment because one party is unable to consummate the marriage, you must file the motion within one year. [1]

THE LAW OF ANNULMENT IN MICHIGAN

. Grounds for Annulment
1. In General
§2.10 There are two statutes in Michigan setting the grounds that invalidate a marriage. Under MCL 552.1, the grounds that make a marriage “absolutely void” are
a bigamous marriage,
a marriage prohibited by the relationship of the parties, or
a marriage with a person who is not capable in law of contracting.

A marriage is voidable if either of the parties is under the age of consent or consent was obtained by force or fraud. MCL 552.2.

2. Prior Spouse of a Party; Bigamy
§2.11 A marriage is void ab initio if it is performed while a prior spouse, from whom no divorce was granted, is still living. MCL 552.1.
When presented with a petition for the annulment of an allegedly bigamous marriage, the court must determine the validity of the marriage and, on proof that the marriage is bigamous, declare it void. MCL 552.3; Harris v Harris, 201 Mich App 65, 506 NW2d 3 (1993) (equitable principles of estoppel and clean hands do not prevent party in void, bigamous marriage from seeking and obtaining annulment).
Even though common-law marriages are no longer valid in Michigan, MCL 551.2, a common-law marriage commenced before January 1, 1957, is valid and would make a subsequent ceremonial marriage of one of the spouses bigamous. See generally People v Seaman, 107 Mich 348, 65 NW 203 (1895).

3. Relationships of Consanguinity and Affinity
§2.12 Marriages between parties related within certain degrees of consanguinity or affinity are prohibited. Consanguinity refers to a blood relationship; affinity refers to the relationship between one spouse and a blood relative of the other spouse, such as that between a man and his stepdaughter. A marriage prohibited because of consanguinity or affinity is void if the marriage was solemnized in Michigan. MCL 552.1. It is not void if it was solemnized in a state that permits such marriages and the parties later move to Michigan or if Michigan residents go to another state to avoid the Michigan prohibition. In re Miller’s Estate, 239 Mich 455, 214 NW 428 (1927) (first cousins married in Kentucky); see also Toth v Toth, 50 Mich App 150, 212 NW2d 812 (1973) (first cousins validly married in Hungary). Recognition of another state’s solemnization of a prohibited marriage does not apply to same-sex marriages. MCL 551.272; 28 USC 1738C.
Under MCL 551.3, a man may not marry his
mother, sister, grandmother, daughter, granddaughter, stepmother, grandfather’s wife, son’s wife, grandson’s wife, wife’s mother, wife’s grandmother, wife’s daughter, wife’s granddaughter, brother’s daughter, sister’s daughter, father’s sister, mother’s sister, or cousin of the first degree, or another man.
Under MCL 551.4, a woman may not marry her
father, brother, grandfather, son, grandson, stepfather, grandmother’s husband, daughter’s husband, granddaughter’s husband, husband’s father, husband’s grandfather, husband’s son, husband’s grandson, brother’s son, sister’s son, father’s brother, mother’s brother, or cousin of the first degree, or another woman.

4. Incompetence
§2.13 If solemnized in Michigan, a marriage that is prohibited by law because either party was not capable in law of contracting at the time of solemnization is absolutely void. The issue of such a marriage is legitimate. MCL 552.1. A court-appointed next friend may bring an action to annul the marriage on grounds that a party was not capable in law of contracting. MCL 552.35. A party who, at the time of the marriage, was not capable in law of contracting and who later becomes capable in law of contracting, may bring an action to annul the marriage. The court shall not, however, annul the marriage if the court finds that the parties cohabited as husband and wife after the party became capable in law of contracting. MCL 552.36.
References in these statutes to the marriage of a person who is “insane,” an “idiot,” or a “lunatic” were replaced in 2001 with references to the marriage of a person who is “not capable in law of contracting” at the time of marriage. See 2001 PA 107.

5. Nonage or Being Under the Age of Consent
§2.14 18 or older. In Michigan, a person who is 18 years of age or older is capable by law of contracting marriage. MCL 551.103.
16 to 18 years old. A person who is over 16 but under 18 may marry with the written consent of one of his or her parents or legal guardians. Id. A Michigan marriage performed without proper consent by a parent or guardian is voidable. Hutchins v Kimmell, 31 Mich 126 (1875); 1945–1946 OAG No 2381, at 15 (July 17, 1944); see also MCL 552.34.
A parent, guardian, or next friend of the minor may bring the action to annul the marriage. A party who was of the age of legal consent at the time of the marriage may not seek to annul the marriage. If the parties, after attaining the age of consent, freely cohabit as husband and wife, the marriage will not be annulled. MCL 552.34.
Under 16. A person under 16 years of age cannot contract to marry, and any marriage entered into is void. MCL 551.51 (“person” under age); Griffin v Griffin, 225 Mich 253, 196 NW 384 (1923) (“female” under age); Tigner v Tigner, 90 Mich App 787, 282 NW2d 481 (1979). Note that a court may marry persons under marriageable age with the consent of all the parents or guardians of the party who is under age. MCL 551.201(2).
If parties marry while under the age of consent, and separate during such nonage and do not cohabit together afterwards, the marriage is considered void, without any decree of divorce or other legal process. MCL 552.2.

6. Fraud and Duress
§2.15 If consent to marriage is obtained by force or fraud, the marriage is void. MCL 552.2. However, an annulment based on this claim will be denied if it appears that the parties cohabited voluntarily after the fraud was discovered but before the suit was commenced. MCL 552.37.
The fraud necessary to vitiate the marriage contract must relate to an essential element of the contract, be of a nature wholly subversive to the true essence of the relationship, affect the free conduct of the wronged party, and be clearly established. Yanoff v Yanoff, 237 Mich 383, 211 NW 735 (1927).
Fraud in obtaining consent was found in the following situations:
The marriage was induced by fraud on defendant’s part, for the purpose of defendant’s emigrating to the United States. Stojcevska v Anic, No 210144, 2000 Mich App LEXIS 2814 (Jan 11, 2000) (unpublished).
A wife induced her husband to marry her by fraudulently claiming that he was the father of her child. Yager v Yager, 313 Mich 300, 21 NW2d 138 (1946); Gard v Gard, 204 Mich 255, 169 NW 908 (1918); Sissung v Sissung, 65 Mich 168, 31 NW 770 (1887).
A wife entered the marriage knowing that she was barren and incapable of conceiving and bearing children and did not disclose this fact to her husband. Stegienko v Stegienko, 295 Mich 530, 295 NW 252 (1940).
One party was placed under the influence of alcohol or drugs so that free will was destroyed. Gillett v Gillett, 78 Mich 184, 43 NW 1101 (1889).
A young man was threatened with prison unless he married a woman who had brought bastardy charges against him. Smith v Smith, 51 Mich 607, 17 NW 76 (1883).

Premarital unchastity alone is not sufficient to show fraud, even if the wife might have deliberately lied about her virtue. Leavitt v Leavitt, 13 Mich 452 (1865). In Hess v Pettigrew, 261 Mich 618, 247 NW 90 (1933), the concealment of a prior marriage was not fraud after the parties lived together for nine years in a common-law marriage.

7. Venereal Disease
§2.16 Before May 29, 2001, a person who had communicable syphilis or gonorrhea was incapable of contracting marriage and was guilty of a felony if he or she entered into marriage. MCL 551.6. This provision has been repealed. See 2001 PA 9.

8. Sterility or Impotence
§2.17 A marriage in which one of the parties has a physical incapacity to have children is valid until the wronged party seeks a judicial decree annulling it. An action for an annulment under this ground must be brought within two years from the date of the marriage ceremony. MCL 552.39. The inability must have existed at the time of the marriage and be incurable.
The inability to conceive or bear children is not in itself grounds for an annulment, unless the party knew of the incapacity before the marriage and failed to disclose it. Stegienko v Stegienko, 295 Mich 530, 295 NW 252 (1940).

9. Other Grounds
§2.18 An annulment has been granted when there was a concealed intent at the time of the marriage not to have sexual intercourse. Stegienko v Stegienko, 295 Mich 530, 295 NW 252 (1940).
Fraudulent and deliberate concealment of homosexuality has been found to be grounds for an annulment. Sampson v Sampson, 332 Mich 214, 50 NW2d 764 (1952).

A number of American Law Reports annotations have addressed issues that may affect the validity of a marriage. See, e.g., A. Della Porta, Annotation, Validity of Marriage As Affected by Intention of the Parties That It Should Be Only a Matter of Form or Jest, 14 ALR2d 624; David

B. Perlmutter, Annotation, Incapacity for Sexual Intercourse As Ground for Annulment, 52 ALR3d 589; T. C. Williams, Annotation, Avoidance of Procreation of Children As Ground for Divorce or Annulment of Marriage, 4 ALR2d 227.

D. Defenses to Annulment
§2.19 As mentioned above, some of the specific grounds for annulment also provide their own defenses if the parties continue to live together after the problem is discovered or resolved. See MCL 552.2 (nonage); MCL 552.37 (fraud and duress).
As a general principle, the complaining party is denied relief if he or she has voluntarily cohabited after learning of the impediment to or the illegality of the marriage. Sampson v Sampson, 332 Mich 214, 50 NW2d 764 (1952). To preserve the right to an annulment, the injured party must leave the marital relationship promptly after discovering the truth. Relief is not barred if the injured party continues to cohabit after relying on a spouse’s statements that a former spouse has died. Boyce v McKenna, 211 Mich 204, 178 NW 701 (1920).

E. Children Born During an Annulled Marriage

1. Legitimacy
§2.20 In general, children born of any marriage, whether void ab initio or not, are deemed to be legitimate. MCL 552.1, .29.
Nonage or incompetence. Children born of a marriage that is dissolved because of a party’s nonage or because a party was not otherwise capable of contracting are considered to be the legitimate children of the party who was capable of contracting when the marriage was solemnized. MCL 552.30.
Bigamy. Children born of a bigamous marriage, which was entered into in good faith, are the legitimate issue of the spouse who was legally capable of marrying at the time of the marriage. MCL 552.31.

2. Child Custody and Support
§2.21 The court will provide for the custody and support of the children of an annulled marriage regardless of the grounds on which an annulment is sought. MCL 552.16; Gallison v Gallison, 5 Mich App 460, 146 NW2d 812 (1966).
While an annulment action is pending, a court may enter orders concerning the care, custody, and support of any minor children. MCL 552.15(1). See chapters 3 and 5 for further discussion of child custody and support.
When a marriage is annulled for force or fraud, custody of the children must be awarded to the innocent parent and support may be awarded from the guilty party’s estate and property. MCL 552.38.
Under both MCL 552.15 and 552.16, orders concerning the support of the parties’ children are enforceable under the Support and Parenting Time Enforcement Act, MCL 552.601 et seq. See §§5.38–5.53 for a discussion of child support enforcement.
F. Property Division and Spousal Support
§2.22 MCL 552.19, which provides for property division in a divorce, also applies to an annulment. The few cases specifically concerning an annulled marriage confirm the use of the same basic principles. The property award must be just and reasonable under all the circumstances. Mixon v Mixon, 51 Mich App 696, 216 NW2d 625 (1974). The court may restore to each party all or part of the property that he or she brought to the marriage. If the marriage has lasted for some time, the court attempts to make an equitable distribution of the property based on the contribution of each party to the marriage. Walker v Walker, 330 Mich 332, 47 NW2d 633 (1951).
In Stevenson v Detroit, 42 Mich App 294, 201 NW2d 688 (1972), a situation involving a bigamous marriage, a putative widow was held to be entitled to survivor benefits from the deceased’s employer where she had entered the marriage in good faith and was unaware of a prior undissolved marriage.

Permanent spousal support is not generally granted in annulment actions, unless there is a statute providing otherwise. John S. Herbrand, Annotation, Right to Allowance of Permanent Alimony in Connection with Decree of Annulment, 81 ALR3d 281. Michigan has no such provision. MCL 552.23 provides for spousal support only on the entry of a judgment of divorce or separate maintenance.

G. Awards of Attorney Fees and Expenses
§2.23 A party may at any time request a court order for attorney fees and expenses related to the action or a specific proceeding, including a postjudgment proceeding, if there are factual allegations showing that the party is unable to bear the expense of the action and that the other party is able to pay. MCR 3.206(C). Alternatively, a party may request a court order for attorney fees and expenses if there are factual allegations showing that the fees and expenses were incurred because the other party was able to comply with a previous court order but refused. Id. This rule applies to annulment actions. MCR 3.201(A)(1).
See also MCL 552.13, which provides for an award of sums necessary for a spouse to pursue the action. While this statute does not specifically mention annulment actions, the court in Mixon v Mixon, 51 Mich App 696, 216 NW2d 625 (1974), an annulment case, considered awarding attorney fees but denied them on the ground that the wife, who earned more than the husband, did not need them to proceed with her action.[3]

[1]
http://www.creditcards.com/credit-card-news/annulment-divorce-debt-kardashian-humphries-1282.php

[2]
http://www.astrochicks.com/2011/12/kris-humphries-divorce-court-kim-kardashian-misses-husband-nba-star-scores/

[3]
Michigan Family Law Benchbook ch 2 (ICLE 2d ed 2006), at
http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=02

(last updated 12/16/2011).