The Kardashian Effect—Legal Separation, Divorce “Papers” and Whether to Seek Annulment or Absolute Divorce?
By now even the non-entertainment savvy amongst us has heard about reality television “star” Kim Kardashian’s made-for-television, multi-million dollar marriage to NBA player Kris Humphries, and their equally publicized break-up a mere 72 days later. Reports have circulated that Kim K. initially asked Humphries for an annulment, however his refusal to “agree” to one left her forced to go the more traditional route of filing for a divorce, citing “irreconcilable differences.”
One of the more frequent questions I receive in my domestic practice surrounds the question of exactly what “papers” a potential client must obtain in order to “legally separate” from his or her spouse. In fact, in North Carolina there are no such “papers” that are needed in order to effectuate a valid, legal separation. North Carolina is what is called a “no-fault” divorce state, meaning that the only requirement for legal separation is a decision by one of the spouses to end marital co-habitation, followed by the action of actually physically separating and no longer living together as husband and wife. It is not even required that the decision to separate be a mutual decision. So long as one spouse has communicated his or her desire to separate from the other spouse, and acted on it—meaning physically ceased cohabitation—a legal separation has occurred. Terms like “irreconcilable differences” are irrelevant in this state, as North Carolina does not require a petitioner to cite a reason for the separation in order to later file for an absolute divorce.
Back to the Kardashians, reports that KK’s beloved Mr. Humphries thwarted her attempts at an annulment might make for good checkout magazine fodder, but legally speaking this is not possible. This is because in California, as in this state, parties cannot merely “agree” to an annulment but rather they must qualify for one under some very strict criteria. Interestingly, the length of Kim Kardashian’s marriage would be irrelevant to a determination of whether or not she could have the union annulled. To “annul” a marriage is to ask that it be declared invalid, that it never legally existed. An action for divorce ends an otherwise valid marriage, whereas an action for an annulment seeks a declaration that the marriage never existed. Annulments are rare, largely because a person must prove grounds to qualify for an annulment before one may be granted by the Court.
Faced with not wanting to wait the mandatory twelve months it takes to obtain an absolute divorce, many newly separated clients ask whether they are able to seek an annulment of the marriage as a faster alternative. Unfortunately, the length of the marriage is not a consideration in whether or not annulment is available and seeking an annulment is not always a faster option for ending the legal bond of husband and wife. In some circumstances, a marriage may be declared “void” and in others, it may be “voidable” based upon a particular set of circumstances. Chapter 51 of the North Carolina General Statutes provides that a marriage may be declared void only if:
1) the marriage was between any two persons nearer of kin than first cousins, or between double first cousins;
2) either of the parties is under the age of 16 (with a limited exception) at the time of marriage;
3) one of both of the parties to the marriage was already married to another living person at the time of marriage;
4) one or both of the parties to the marriage was physically impotent at the time of the marriage; or
5) at the time of the marriage, one or both of the parties was “incapable of contracting from want of will or understanding;” OR
6) the marriage was contracted under the representation that the female is pregnant, the parties separate within 45 days of marriage, and no child is born to the female within ten months of the date of separation.
It is important to note that none of the above-stated grounds for annulment have to do with fraud other than fraud regarding impotency or regarding a pregnancy. Fraud regarding other issues, for example the desire to have children, is not a ground for annulment. Furthermore, only a bigamous marriage cannot be ratified by the parties. Meaning that even if one of the other “voidable” criteria is met, if the parties were aware of the defect at the time of marriage and married anyway, this is not a basis for annulment later.
As a practical matter, annulment is a rare and specialized cause of action. In most instances, parties will not qualify and will instead need to wait the requisite 12 months before they may petition the Court for a divorce. If you are contemplating separation or would like to speak with an experienced attorney, Hodges & Coxe can help. I offer free consultations and am always happy to sit down with you to discuss your specific case and to determine what path is best for you.
–Jennifer Bennett joined Hodges & Coxe PC as an associate attorney in 2010 and currently practices in the areas of general civil litigation and matrimonial law, focusing on divorce, child custody disputes, establishment and defense of child and spousal support obligations, equitable distribution and marital tort claims. You can reach her at (910) 772-1678 or at jbennett@hcpplaw.com
