Will Kim Kardashian and Kris Humphries get a divorce or an annulment? What’s the difference? Do they have a choice? What are the advantages and disadvantages of each? Who cares? Although I couldn’t care less about the Kardashian-Humphries saga, their marital relationship and its termination are a useful backdrop for a discussion of the differences between dissolution of marriage (divorce) and annulment of marriage.
Annulments are rare in Arizona, largely because a person must prove grounds to qualify for an annulment. With most Arizona divorces, by contrast, a person need only show that in her own mind the marriage is irretrievably broken, whether her spouse feels the same way or not. A person who qualifies for an annulment may choose to pursue a divorce instead, but a person who qualifies to get a divorce can only choose an annulment instead if there are legal grounds for an annulment.
Grounds exist for an annulment where some impediment renders the marriage void or voidable. A.R.S. Section 25-301. An example of a clearly voidable marriage is the case of a woman who marries a man and later discovers that, at the time of the marriage, her husband was married to another woman. The man’s second wife would be entitled to an annulment of the second (bigamous) marriage.
Other cases may qualify for annulment, but they are less clear. Material, fraudulent misrepresentations made to induce the marriage may constitute grounds for annulment. If a man misrepresents his religious affiliation and that misrepresentation is a key factor the wife relies on in deciding to enter the marriage, the wife is probably entitled to an annulment based on that misrepresentation. State Compensation Fund v. Foughty and Industrial Commission, 476 P.2d 902, 13 Ariz.App. 381 (Ariz. App. 1970). Misrepresenting one’s financial situation, however, is probably not sufficient grounds. State Compensation Fund v. Reed, 470 P.2d 465, 12 Ariz.App. 317 (Ariz. App. 1970). Impotency or the failure to consummate the marriage alone is NOT a basis for an annulment. Jackson v. Industrial Commission, 592 P.2d 1258, 1260, 121 Ariz. 602 (Ariz. 1979) (citations omitted).
Depending on the facts he was able to prove in court, perhaps a Kris Humphries could seek an annulment based on fraudulent misrepresentations by his Kim Kardashian. From the lawyer’s perspective, however, the question is usually not simply whether my client (or the opposing party) may qualify for an annulment. The real question is, “if my client qualifies for or successfully opposes an annulment, what will the financial effect be on my client?”
A divorce dissolves a valid marriage as of the date of the divorce decree. In the absence of a premarital agreement, community property law applies. An annulment, on the other hand, “invalidates a marriage from its inception, thereby establishing that the marital status never existed.” State ex rel. Dept. of Economic Security v. Demetz, 130 P.3d 986, 988, 212 Ariz. 287 (Ariz. App. 2006) (citations omitted). Since the annulment invalidates the marriage from its inception, the annulment also negates community property. Suddenly, what’s yours really is yours and what’s mine really is mine, not “ours.”
Consider this extreme example for sake of illustration. Husband and Wife marry without a prenuptial agreement. Three weeks later, Wife cashes her paycheck, buys a lottery ticket, and the ticket is a winner. Wife decides to dump Husband. If Wife qualifies for an annulment, Husband gets none of the lottery winnings. If Husband and Wife divorce, however, the lottery winnings are community property, and Husband gets half. Wife will pursue the annulment if she believes plausible grounds exist, and Husband will strenuously oppose it. In short, Although some people seek an annulment simply because they feel better not having to say they were divorced, the primary basis for seeking an annulment rather than a divorce is often financial.
If you believe you may qualify for an annulment and are considering an annulment in lieu of a divorce, I would welcome the opportunity to meet with you to discuss the facts of your particular case.
Copyright © 2011 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.