New Divorce and Family Law Blogs

Bankruptcy and divorce, two subjects existing closer than will please many is the subject of The Interplay Between Bankruptcy and Divorce Law in Virginia. Not exactly a zinger for a blog name but spot on accurate for its content.  The posts concentrate on Viriginia, naturally.  Which does not mean it lacks value for Indiana - just check its bankruptcy reports against our Seventh Circuit.  (I do not expect many differences but what differences exists will probably be significant.)

I found interesting what differences exist between Indiana and Virginia in its Top Ten Costly Divorce Mistakes to Avoid During a Recession (as well as good points for Hoosiers, too):

1. Adultery may eliminate spousal support in Virginia.

Even if our temporary maintenance equals their spousal support, there is no support for this in our statute.  On the other hand, I think our economy and the closeness of income between parties makes maintenance (temporary or otherwise) difficult to get.  For more on Indiana maintenance go my archived articles.

2. Be aware of formulas and guidelines for determining support in Virginia: child support guidelines are the presumptively correct starting point for support; pendente lite spousal support: w/child – 28/58%, w/o child – 30/50%.

This is true for Indiana, too.  Diverting from our Child Support Guidelines means having a very good reason.

3. Alimony: request it, reserve it, or lose it.

Not got alimony in Indiana but maintenance we do have.  Request a provisional hearing and ask for temporary maintenance and save permanent maintenance for the Final Hearing.  But go back and see my comment to 1.

4. You have 2 years to file for an annulment and you may lose your right by cohabitation after knowledge of the facts.

Looks like annulment may be as hard to get in Virginia as in Indiana.  Cohabitation is also a defense in Indiana.  This did point out to me that there is no explicit statute of limitations for annulment in Indiana under the Indiana Code (and certainly none mentioned in any of the available cases).  I suppose that our general statute of limitations on fraud may apply.  For more about annulment in Indiana, follow this link to the annulment articles archive.

5. Do not delay the filing of a motion to modify support upon a material change in circumstances.

Damned good advice.  This applies everywhere.  Even when there is not a recession.  Do not say that you cannot afford a lawyer - find one that will unbundle services or one that takes payments.  Getting behind in your child support means contempt, which can mean jail.  You figure out which is cheaper - a lawyer or jail time.  For my articles on contempt, go here.  For my atricles on attorney fees go here, and for child support articles follow this link.

6. Judges are hostile to the concept of separating under the same roof in Virginia.

Never seen this problem in Indiana.  Especially locally with our post- General Motors economy, judges can have no problem with two people living together who do not want to be married any longer.

7. A suit for a divorce from bed and board can be filed immediately in the Circuit Court. You may be able to obtain pendente lite relief for temporary support, attorney’s fees and costs, protective orders, temporary custody and child support, exclusive use of the marital residence, or a freeze on assets.

Take out the "from bed and board" and add after Circuit Court "or Superior Court", and  take out "protective orders" and , and you have a good description of what Indiana courts can do.  Protective orders need filing separately here.  I have an arichive of my aticles on our courts and an archive on protective orders.  I put in these links so that more specific information is can be gotten to, please use them to get at this information.

8. Consult with your tax advisor concerning the tax consequences of spousal support, allocation of the dependency exemption, exclusion of gain from sale of marital residence, etc.

Another good idea that applies here as well as Indiana.

9. Be careful about leaving the marital residence without a separation agreement.

I do not think this is as a lethal in Indiana as it appears to be for Virginians.   That any agreement is a good thing, I will not deny.

10. Consider the possibility in your agreement that one spouse may file for bankruptcy relief.

Always, always consider the fact of bankruptcy.   Maybe it is all my years when I did practice consumer bankrutpcy law but I am a bit surprised by lawyers who do not think of bankruptcy.

McLean County Divorce comes from Illinois lawyer, Jon D. McLaughlin, with me having a bit of concern over the two months from his last post.  However, Hoosiers still might learn from his Change of Child Custody and Simple Divorces (we have a better procedure here). I have some quibbles with his Suggestions for Fathers going through a divorce but on the whole, it is a good collection of suggestions for Indiana fathers.  Let us hope that Mr. Mclaughlin continues to publish his blog.

Okay, it is Canadian but Collaborative Practice Canada does a more than adequate job of promoting colllaborative law.  I cannot say that anything specifically applies to Indiana but that has is not quite the point either.  If the general public wants a less adversarial approach to family law cases, then the general public needs to know that an alternative not only exists but why it is preferable.  That said, give a look at Collaborative Law - in the interests of families and children..


 Another family law blog, this time from California's Orange County.  Hence the name being Orange County Family Lawyer Blog. It looks fairly new but the articles are clearly written and succinct.  Still fairly new and may interest those who want to contrast Indiana's courts with another state.

Catching Unasked Questions - Indiana Family Law

John Bolch's post Q & A inspired me to try my hand to address Google queries that brought some to this blog.  The queries are in bold and my responses are in plain text.

Remember what my disclaimer says about answering specific legal questions - see it on the right hand side and down.

Who mediates child support modification in Indiana


A: Hard to tell from this query if the searcher wanted to know who made the decision about child support modifications or if they really wanted to know about mediation. If they actually meant mediation, then it is whoever is chosen as the mediator.  Otherwise, it will be left up to the court that set the original support order.  See, the court (paternity or divorce) that made the original order keeps jurisdiction of the case. (Getting a different judge is a different matter).


How to interpret the Indiana parenting guidelines

A.  Another query seriously lacking in specificity.  The general rules for interpreting a rule or statute:  1) the specific provision controls the general, and 2) the thing must be read as a whole  (the tail does not wag the dog). 

Indiana law teenager rights visitation

A.  Yes, they exist and apply to teenagers.  You need to read the Indiana Parenting Time Guidelines.  You will find a link to the IPTG on the right hand of the screen and down. 


Cohabitation agreements Indiana

A.  Is it time for a FAQ (Frequently Asked Questions)?  We have them.  I suspect you can find a form online but there is no officially prescribed form.  Check out the cohabitation archives here.



Indiana modification of custody forms

A. I have been saying this for a long time, Indiana has no official forms.  You can find versions of forms online.  I suggest reading my for the pros and cons on forms. 


"post-nuptial agreement" +indiana

A. See my articles here. 



Successful cases winning annullment; indiana annulment laws


A.  These searchers did not stick around to read anything written on here about annulment.

Let me explain that if these people were looking for information on successes winning cases on the trial court level in Indiana they will never find this information on the Internet. As these people were searching for annulment, they probably did not see this article.  I did a search for annulment cases at  the appellate level and published my results here.



Indiana laws for unmarried fathers


A.    I am going to be very technical for a second:  Indiana has no law for unmarried fathers only for paternity cases.  The laws apply to unmarried fathers and mothers.

Unmarried fathers need to look at IC 31-14, The Indiana Parenting Time Guidelines, and the Child Support Guidelines.  There you will find the general law in Indiana for unmarried parents.



Can a child determine which parent they want to live with in indiana; a child%27s right to choose

A.  No. 


Emergency custody for fathers in indiana

A.  I suspect this searcher wound up not finding what he might have found if he had just looked for "emergency custody in Indiana".  Even then he would not be happy with what he found - there really is nothing specific about what is meant by emergency custody in Indiana.

I explain this more here.



Indiana custody law attorney fees

A.  If the searcher was looking for a specific answer, they were unlucky.  I do not know of anyone who will specify their fees online. As I told someone yesterday, there are too many details needing to be known before even giving an estimate of fees for a custody case.  I will suggest that anyone thinking of a custody case budget at a minimum $3,000.00.


best family law attorneys indiana

A.  I found this one amusing.  There being more art to the law than science, judging a best lawyer is a lot like judging between Leonardo da Vinci and Michaelangelo. 

Damned hard to think of how to define "best"  when so much depends on each case.  A terrible lawyer can do quite well with good facts while a great lawyer can do little with bad facts.  The clients bring us the facts of the case and we have to live with them.  The better lawyes know when not to take a case.


"common law marriage" indiana

A.  There is none.  Look at the articles on cohabitation here.

An Irish Annulment Case

I noticed Woman loses bid to annul four-year marriage from The Irish Independent, but had not enough to write anything on the story. Those reading my articles on annulment (if you have not read these, follow the link below this post to the archives) might recognize some of the facts as being similar to some very old Indiana cases. Some other points:

• I think the story highlights the differences between different jurisdictions. Notice that Ireland's Constitution has a provision on marriage. Differences exist between countries and also between states. I think with people using the Internet for research (such as this blog), I need to keep pointing out that what is true in Indiana may not be true in California and vice versa.
• On the hand, the article shows that it is not just difficult to get an Indiana annulment but to get one in Ireland, too.
  

Oh, yes, the article itself:

A WOMAN yesterday lost a Supreme Court bid to have her four-year marriage annulled because her husband allegedly hid huge debts and misrepresented his character before they were wed.

A psychiatrist had diagnosed the husband with a 'narcissistic personality disorder' and the woman claimed he was 'pathologically given to deception and concealment', both in his personal and financial dealings. He also drank excessively, she claimed."

***

Yesterday, Mr Justice Nicholas Kearns dismissed her appeal. He said the Constitution imposes a clear obligation on the courts to uphold the marriage contract.

It would require "much stronger evidence" to show the husband lacked the necessary capacity to enter a valid contract of marriage, the judge said.

The courts had to draw a clear distinction between conduct, on the one hand, and incapacity, on the other, he said.

The judge said while the husband engaged in "undoubtedly feckless, irresponsible and immature conduct" and turned out to be not the man the woman thought she was marrying, "one may regretfully observe that the same could be said of many marriages".

Indiana Alternatives to Divorce: A Modern Appellate Case

While not a fraud case but annulment using bigamous marriage for its grounds, Thomas v. Smith (html format) still has something to teach us about annulments in Indiana.

First, the facts:

On January 30, 1991, Leslie and Michelle participated in a marriage ceremony in Boone County, Kentucky. However, no legal marriage actually occurred because Michelle remained married to Albert Dula until April 15, 1991, the date the divorce decree was issued. After the marriage ceremony, Michelle and Leslie acquired the Tuppence Trail property in Lawrenceburg, Indiana, but it was held in Michelle’s name alone.

They discovered the marriage was not valid in 1996 when Michelle had to produce a divorce decree in order to clear her credit record. However, neither Michelle nor Leslie thereafter attempted to enter into a valid marriage. Instead, they acted as two single persons cohabitating by filing taxes as single persons. After learning of the void marriage, they acquired another piece of real estate in June 1996 on Ventura Drive in Lawrenceburg, Indiana, which was also titled solely in Michelle’s name, and they adopted three minor children. Michelle also had a son named Joshua from her previous marriage, who was nineteen years old at the time of the final hearing.

That the wife filed the annulment case is interesting to me. Here is what the trial court did:
...On November 12, 2002, the trial court issued a decree of annulment, which awarded custody of the minor children to Leslie, provided for $169 per week in child support payments from Michelle based on her weekly income of $700, and divided Michelle and Leslie’s real and personal property. Specifically, Leslie received the Ventura Drive property, the 1983 Chevrolet pickup truck, the 1997 Mercury van, the bass boat and all funds in his 401(k) plan. Michelle received the two other parcels of real property, all cash investments, all furniture in her possession, the lawnmower, the 1987 Honda, the 1993 BMW and all funds in her 401(k) plan. The trial court also found Joshua to be emancipated because he was over eighteen years of age, not attending school, and supporting himself at the time of the hearing. Thus, the trial court did not give Michelle credit for Joshua’s support against the support payments she was ordered to make for the other three children.

Which lead the wife to file her appeal. Notice that the annulment court determined child support and custody. Since the trial court's power to determine custody and support were not contested by mother, I am not discussing these points.

What the wife did contest that deals explicitly with the topic of annulment is the division of property. The Indiana Court of Appeals describes wife's issue as "[s]pecifically, Michelle argues that the trial court lacked subject matter jurisdiction to divide the property because her marriage to Leslie was bigamous and therefore void."

However, those who are in bigamous relationships are not entirely without a remedy. Indiana Code section 32-17-4-1 permits parties who have never been married to file a partition action as to real property. Additionally, the trial court may equitably divide property acquired during the bigamous relationship if one of the parties requests such action. Rance, 587 N.E.2d at 152.

Similarly, we note that in accordance with Trial Rule 15(B), when issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. ***

In this case, while the marriage between Michelle and Leslie was void, the division of property was litigated by the consent of the parties. Michelle not only failed to object to such a division of the property, she presented extensive evidence and arguments at the hearing and in the motion to correct error as to why she was entitled to certain assets....

At this point, somebody has to say oops as it appears that property division does not come within the authority of an annulment court. Then IC 31-11-10-4 means exactly what is says: only the procedures of the dissolution of marriage article apply to annulment cases.

Indiana Alternatives to Divorce: Annulment Meets Divorce

In Mason v. Mason (html format), the Indiana Court of Appeals dealt with a case where the husband claimed the trial court ought to have annulled the marriage. The Indiana Court of Appeals upheld the dissolution over the annulment.

I read the following as the important facts of the case:

On January 10, 2000, John filed for an annulment on grounds that his marriage to Bonnie was void under Indiana Code section 31-11-8-3, which prohibits marriage between first cousins unless such cousins are at least sixty-five years old on the date of the marriage. On March 23, 2000, Bonnie filed an Answer to John’s complaint and a Counterclaim, seeking dissolution of her marriage to John on the grounds that the marriage was irretrievably broken. On November 2, 2000, John was deposed, and the deposition was filed with the trial court on December 5, 2000. After several delays, a bench trial was set for January 11, 2002. John’s attorney, with court permission, withdrew his appearance on November 12, 2001. On January 11, 2002, Bonnie appeared with counsel, but John was absent. Bonnie’s counsel orally moved to dismiss John’s complaint for failure to prosecute. The trial court granted the motion because of John’s absence. The trial court found that the Masons’ marriage was valid under the Full Faith and Credit Clause of the United States Constitution, See footnote granted Bonnie’s request for dissolution, and awarded her all the marital property including the four life insurance policies. The trial court also awarded Bonnie attorney’s fees. John now appeals.

Because the annulment petition depended on the parties being first cousins, the annulment issued turned on the validity of the Tennessee marriage:

In this case, both parties admit to being first cousins. Appellant’s App. p. 5, 22. They also concede that they were married in Tennessee and that Tennessee allows first cousins to marry. Appellant’s App. p. 70, 181. Additionally, no statute such as Indiana Code section 31-11-1-1(b) See footnote exists to establish that a marriage such as John and Bonnie’s violates Indiana’s public policy. As a matter of comity, Indiana can choose to recognize Tennessee marriages between first cousins, even though such a marriage could not be validly contracted between residents of Indiana. Thus, the trial court committed no error in recognizing John and Bonnie’s marriage as valid.

Which in turn supported the trial judge's decision to dismiss the annulment petition. Thus, the wife's dissolution petition was heard and the trial court's decision to do so was upheld on appeal.

The opinion has only one other point that has anything to do with annulment:

In reviewing John’s claim, we first note that this court has held that if a marriage is void, then the trial court lacks jurisdiction to award attorney’s fees. Rance v. Rance, 587 N.E.2d 150, 153-54 (Ind. Ct. App. 1992). As stated above, however, John and Bonnie’s marriage is considered valid in Indiana. Thus, the trial court could properly consider Bonnie’s request for an award of attorney’s fees with regard to her counterclaim for dissolution....

Annulment vs. Divorce: Tax Issues

The Mainstreet site has an article that poses a different perspective on the annulment versus divorce argument but Annulment vs. Divorce: The Financial Differences skirts an important issue about annulment and has deserves an important qualification in Indiana.

The following paragraph has a general application to Indiana:

When a marriage is annulled, the courts usually try to restore each party to his or her original financial state before the marriage occurred. This means that what you brought to the marriage you will usually take away from a marriage. If a couple has accumulated some shared assets prior to an annulment, it can get a little more complicated. The division of these assets is usually handled as if two strangers bought property together. When children are involved, child support and custody agreements are handled just like a divorce."

However, see Thomas v. Smith (html format) for an exception to this general rule.

Here is the twist:

If you are the financially weaker partner, it may be in your best interest to file for a divorce. If, on the other hand, you have substantial assets and can prove that your marriage should never have occurred, filing for an annulment can save you a lot of dough (particularly in spousal support). An annulment can also help one partner avoid liability for another partner’s significant debt. Talk to a divorce attorney about the specific circumstances of your marriage to find out which of these options will work best for you.

Yes, there could be tax issues. Which for me, raises the specter of collusive annulment filings. Or a lot of people storming law offices wanting to annul their marriages because the article does not mention clearly that the grounds for annulment and divorce can differ.

Remember that in Indiana, there are specific grounds for annulment and these need to be proven by a preponderance of the evidence. (For more on Indiana annulments, just click on the annulment link below).

Alternatives to Divorce: Annulment

The interest in annulments continue, so I decided to take a look at Indiana case law. There is not much.

The most recent being In the Matter of the ESTATE OF Mark R. HOLT, 870 N.E.2d 511 (Ind.App. 2007). Brother petitions court to determine on grounds that remarriage of dead brother and former wife was void due to decedent's mental incompetency. Some points to consider:

Indiana Code Section 31-11-8-4 provides: “A marriage is void if either party to the marriage was mentally incompetent when the marriage was solemnized.” Accordingly, if a party is of unsound mind when the ceremony was performed, the marriage can be declared void. Baglan, 4 N.E.2d at 55. The burden rests upon the challenger to prove that a party was incapable of understanding the nature of the marriage contract. Id. “The presumption in favor of the validity of a marriage consummated according to the forms of law is one of the strongest known.” Bruns v. Cope, 182 Ind. 289, 105 N.E. 471, 473 (1914), overruled in part on other grounds by Nat'l City Bank of Evansville v. Bledsoe, 237 Ind. 130, 144 N.E.2d 710 (1957).
Several lay witnesses testified concerning Mark's apparent state of mind and actions on his wedding day. Porter County Clerk Dale Brewer, who completed the marriage license application and performed the wedding ceremony, testified that she “followed basic procedures” and perceived “no red flags.” (Tr. 98.) She testified further that she specifically asked Mark if he “wanted to get married.” (Tr. 115.) In her opinion, Mark had no problems answering the application questions and responded promptly and appropriately. Mark's friend Darin Milbrandt testified that Mark exhibited no problems at the wedding. He was “in good spirits” and “didn't need assistance.” (Tr. 142.) Mark's stepson testified that Mark joked and laughed, talked about fishing, and specifically inquired about his step-granddaughter. Curtis and Donna Claussen, who briefly visited with Mark after the wedding, described a conversation in which Mark asked about Curtis's work and correctly identified his employer. Curtis opined that Mark was “not confused or incoherent” and expressed his wish to get out on his boat. (Tr. 168.) Irene Claussen also testified that Mark was engaging in normal conversation and was “not confused or incoherent.” (Tr. 129.)

Richard essentially argues that the testimony of each of the foregoing witnesses should be discarded as incredible because they are related to or friendly with Cindy and they are not expert witnesses. He cites no authority for the proposition that laypersons may offer no evidence of another person's mental competency. He also would discard the testimony of expert witness Dr. Robert Granacher because his opinion of competency rests in part upon the laypersons' reports. Richard merely requests that we reweigh the evidence, find each of Cindy's witnesses lacking in credibility, and credit only the testimony of his expert witness who opined that Mark's seizures were likely preceded by undiagnosed seizure activity. However, we do not engage in this reweighing process, but rather must determine whether the evidence unerringly points to a conclusion other than that reached by the trial court. See LTL Truck Service, LLC v. Safeguard, Inc., 817 N.E.2d 664, 667 (Ind.Ct.App.2004)

Then we have DeMoss v. DeMoss, 135 Ind.App. 548, 195 N.E.2d 496 (1964) where one of the parties was too young to marry without parental consent.

The complaint here indicates that appellee was a male seventeen years of age at the time of marriage, and also at the time of the filing of this action, and could not have ratified the marriage. The marriage was therefore voidable and subject of being declared void upon his application.

Then we go back 1919 and CHRISTLIEB v. CHRISTLIEB, 71 Ind.App. 682, 125 N.E. 486. By the way, this case remains good law in Indiana even with its age. This case actually has some interesting points, some of legal interest and also of more historical interest. Here are the facts as plead:

The material averments of the first paragraph of complaint, hereinafter termed the complaint, are as follows: That on August 29, 1916, appellee entered into a certain marriage ceremony and pretended marriage with appellant at Centerville, in the state of Michigan; that said marriage was illegal and void for the following reasons: That appellee was at the time but 16 years of age, and that the pretended marriage was without the consent of her parents, who were at the time residents of Lagrange county, Ind.; that prior to said marriage appellant had falsely and fraudulently represented to appellee that he had never been married, had no children, and was a man of good character in the community where he had lived; that appellee, being ignorant as to the truth of such representation, believed the same to be true, and, relying thereon, entered into the marriage contract; that said representations were false, and known by appellant to be false at the time made, and were made for the purpose of deceiving appellee and inducing her to enter into said marriage; that appellant had been married and was the father of three children; that in 1914 appellant was divorced from his former wife; that the custody of two of said children was awarded to appellant, and he is now under order of court to support the same; that appellant is a drinking man who spends his earnings in riotous living and debauchery, and that he is dishonest; that the parties “have never lived or cohabited together as husband and wife.” Prayer that the marriage be declared void.

It will be observed that the complaint is not based upon section 5 of the Acts of 1905 (Acts 1905, p. 215; section 8367 Burns 1914), regulating marriages, or upon any other statute, but proceeds upon the theory of actual fraud in procuring the marriage contract. The law is well established that a marriage procured by fraud is voidable at the suit of the injured party, and that courts having the jurisdiction of courts of equity, under their general powers to annul fraudulent contracts, also have jurisdiction to annul a marriage on account of fraud (Henneger v. Lomas, 145 Ind. 287, 44 N. E. 462, 32 L. R. A. 848); but what would constitute such fraud as to authorize the annulment of a marriage has not been determined by the courts of appeal of this state.

Nowadays this sort of fraud is included in the annulment statute. How does the Court of Appeals decide the case?

The allegations of the complaint which refer to appellant's fraudulent representations as to his personal character and his former marriage are not, however, the only averments going to the charge of fraud. It is also alleged that appellee was but 16 years of age; and, although appellant's age is not given, it may nevertheless be inferred from the facts set forth in the complaint that he was much older. The mere fact that appellee was but 16 years old at the time, and was married without the consent of her parents, would not, under the statute requiring parental consent to the marriage of a girl of that age (section 8371, Burns 1914), render the marriage void, even if the marriage had taken place in Indiana. Franklin v. Lee, 30 Ind. App. 31, 62 N. E. 78. Nevertheless, when taken in connection with the other allegations of the complaint, the statement that she was only 16 years of age is an important allegation in support of the charge of fraud....

Another averment of the complaint, and perhaps the most important, is that the parties “have not lived or cohabited together as husband and wife.” Where a marriage has not been consummated, the reason for the rule above stated, and therefore the rule itself, do not apply. No unborn children “will cry out from the mother's womb demanding that they may not be bastardized, lose a father, and know only a disgraced >mother.” In the case under consideration the public can be in no way interested in affirming the marriage. On the contrary, public policy would seem to require an annulment of the marriage. If the marriage is declared valid, it will be in name only, preventing the parties from marrying again. We are therefore constrained to hold that the allegations of the complaint, when taken together, state a cause of action for fraud, and authorize the annulment of the marriage....

So with all the talk of fraud, what we have in is the same case as DeMoss.

Let me speculate a bit about the long gaps between these appellate court cases. First, annulment requires meeting and proving certain things which makes its use rather limited and rather rare. Then, too, I think what annulment cases do get filed, do not give rise to issues for appeal.

Ask yourself this question about DeMoss: what potential bride (or her family, who probably paid for the appeal) would appeal the annulment of her marriage? I suspect more of a social stigma attached in 1964.

I think Moore v. Moore. 81 Ind.App. 169, 135 N.E. 362, 363 (1922) supports my thinking that annulment lost its luster when fault was removed from the divorce statute.

The issue presented in this cause by the first paragraph of cross-complaint was as to the right of appellant to have his marriage to appellee nullified. The issue presented by the second paragraph of cross-complaint was as to the right of appellant to an absolute divorce from appellee. No other issue was presented. The court found upon each of these issues against appellant, that he was not entitled to have the marriage declared null and void, and that he was not entitled to an absolute divorce....

Under the current statute, the husband (who was the appellant) would have had his divorce although not the annulment.

Annulment vs divorce, and the Arrogance of Memory

After writing Annulment versus Divorce, I noticed someone came to this blog with the following query: "what are the benefits of annulment vs divorce?." Which lead me to run the same query and to a change to my earlier article. In this post, I am going to examine some of the benefits of annulment and I get to chastise myself in a small way:

The new groups are not concerned
With what there is to be learned

This blog reminds all too often that there is much to be learned and not to rely wholly on my memory. Ah, the penalties of age!

The search lead to Yahoo! Answers and Whats the social opinion about annulment vs divorce? ". The was the winning answer. I find it unsatisfactory as a lawyer but it was not a law question, was it?

Socially, both are viewed as negative but perception of divorce is worse. People often cast judgement without first knowing circumstances as is the case with divorce. While both are viewed as a failure, one kind of 'never happened'.

Since your question is directed to men I can say without a doubt that if given the option she should have her marriage annulled instead of divorce. (Unless he is financially loaded and a divorce settlement benefits her, lol)"

This answer did not get any votes, but from my lawyer's viewpoint is the best answer:

Because of the reasons by which an annulment is granted, I view divorce as far worse.

Usually annulments are granted if there is fraud (consent to the marriage was based on fraud), marriage is not consumated (sic), parties are related or too young to consent to marriage, one of the parties is already married (bigamy), or mental incompetence. The marriage was never legal to begin with so it is annulled.

A marriage that is perfectly legal but the parties can't just work it out ends in divorce. For me it usually means that people really didn't think about the implications of being married. I'm not saying this applies to all marriages. I do believe it's ok to divorce if you are being abused, cheated on or your spouse has an addiction.

IF she can get it annulled, then get it annulled. But remember she may need to meet certain criteria for that to happen. Make sure to consult with a lawyer in your country.

Next I landed on an immigration discussion board. While the discussion degenerates into the usual Internet white noise, it does the issue of annulment as a legal matter and as a personal one. It reinforces my point that annulment requires fraud but it shows me how annulment gets bandied about the Net.

Now, about that arrogance of memory, I found Dissolving the Marriage: Divorce v. Annulment from The New York Divorce Report. This paragraph made me think to re-read the annulment statutes:

A party seeking an annulment can seek all of the remedies available to a party in an action for divorce, including maintenance, equitable distribution, child and child support.

I am thinking if Indiana had that sort of statute, then things might be a bit different for annulment in Indiana. Here comes the chastising.

I then looked at the statute again (which is a lot quicker and easier with the Internet and a cable modem). I have not looked at the actual statutes for several years now. It appears that my memory forgot about this one:

IC 31-11-10-4
Procedure

Sec. 4. An action to annul a voidable marriage under this chapter must be conducted in accordance with IC 31-15.

And what is IC 31-15? Here it is: ARTICLE 15. FAMILY LAW: DISSOLUTION OF MARRIAGE AND LEGAL SEPARATION. I shall see if there is any case law interpreting this statute and report back. I must take the view now that there will be a presumption of a 50-50 split in the property (which does satisfy my earlier correspondent to keep the fraudster from profiting from her fraud).

Which means I at best overstated the argument that annulment does not provide for division of marital property and at worst I was plain wrong about the problems of property division. For that argument I relied upon my memory and therein lies what I have begun to call the arrogance of memory.

I still stand - without relying on memory alone here - on the point that for legal purposes annulment presents greater problems that does dissolution of marriage in Indiana. I add that since it strikes me that some of these discussion boards may have members from states where fault must be proven in divorce as well as in annulment cases. (By the way, for how an annulment statute can differ between states, compare this case with Indiana's current statute). I can do nothing about whatever social stigma may attach these days to divorce. I can only deal with the legal issues.

Remember that Indiana has only two grounds for annulments: Incapacity to marry because of age or mental incompetence (IC 31-11-9-2) and Fraud (IC 31-11-9-3). Compare this with what The Georgia Family Law Blog writes in Annulment vs. Divorce or with Texas. (I cannot find a state for Divorce or Annulment? from Bizymoms which scares the devil out of me - there are things mentioned that just do not apply to Indiana. I suspect that it is true of other states. Still, it is interesting to see the differences between Indiana and other states.)

Other than proving one's grounds for annulment, there are defenses to the annulment making annulment a more difficult proposition. (Again, these do not exist under our dissolution of marriage statute). Including this statutory defense:

IC 31-11-10-2
Action by victim of fraud; defense
Sec. 2. ***
(c) It is a defense in an action brought under this section that, after the discovery of the alleged fraud, the alleged victim continued to cohabit with the other party to the marriage.

I had to go to Colorado to find this but it was worth the effort with Google:

Many people assume that a Colorado annulment is simply an easy way to end a brief marriage. The reality is that a declaration of invalidity of marriage (the legal term for annulment in Colorado) is a rarely-used procedure, and thanks to no-fault divorces, it is seldom easier than obtaining a Colorado divorce (dissolution of marriage). Seeing celebrities like Britney Spears annul her Las Vegas marriage after only a day (not the Kevin Federline marriage, but the one to her high school friend) only fuels those beliefs.

From a practical perspective, there is little difference between an annulment and a dissolution in Colorado. The legal effect is that the marriage never happened, which may benefit those who would rather avoid a Colorado divorce for religious reasons, or perhaps to reinstate benefits or payments lost when one party marries, such as maintenance or military medical benefits.

Substitute Indiana for Colorado and it says almost everything I have been trying to say about annulment in Indiana.

One thing I did learn is that I thought I priced my annulments high, but nothing like the fee here. (I differ strongly on this site claiming that the hardest part is getting the paperwork filed. No, here the hard part comes when you start presenting evidence supporting your claim of fraud or your other ground for annulment.)

If after reading this post and the other posts I have archived under "annulment", you still think you have a case for annulment then give me a call.

Annulment versus Divorce

Recently, I had a little e-mail dialog on this subject and I think it is worth repeating here. The sender, a non-lawyer, wrote the following:

As far as annulment vs divorce; It comes down to a matter of principals. Women that go around pointing the finger at the most convenient target should be held accountable for doing so.

Being married affords the person who concealed material facts relevant to the marriage, a claim to assets and other property that they would have no claim to had the fraud not taken place. To me, this situation would be no different than allowing a criminal to keep the proceeds of his/her crime. Our courts seize fruit of crimes every day.

Here is my response.

Frankly, you gave me a bit to think about. I never understood the interest in annulment as a lawyer. Here are the reasons:

• Annulment requires proving a case while divorce merely requires asserting that the marriage is irretrievably broken. Don't prove the elements of annulment and you remain married until you file for a dissolution of marriage.

• Annulment voids the marriage which means you were never married. Annulment does not really contemplate a long time between marriage and filing the petition for annulment. If it did, then it would deal with the division of property and debts accumulated during the marriage. If you think that does not matter or is easy to deal with, then I suggest you check out the cohabitation articles on my blog. PITA only begins the description. The divorce statute does provide for a division of debts and property.

What I have missed the is emotional appeal of annulment. I can see why it would appeal - as a quasi-punishment for fraud. I still think it would be unsatisfactory as revenge for the general reasons described above.

Understand annulment differs wholly from divorce and is not merely divorce with a different name. Another technical problem exists for those married for any length of time besides the problems of dividing property. The defending party has all the defenses for any other type of lawsuit - including one called laches. I do not seeing winning an annulment case where the discovery of the grounds became known years before the filing of the annulment petition. And what do you get if you lose the annulment case? I suggest you file for divorce, raise the child's paternity in the divorce case, and get out of the marriage.

Annulment in Indiana: What Makes a Good Case?

Does a spouse getting married for revenge on an ex-boyfriend, saying that she never loved her husband, qualify as grounds for an annulment?

I wrote a general overview of Indiana's annulment law in Annulment in Indiana. Reading that post again, I notice that I did not even offer a link to Indiana's annulment statutes. However, it still is a good overview of annulment.

The case described above would be a fraud case under IC 31-11-10-2 and 31-11-9-3:

Action by victim of fraud; defense
(a) This section applies to a marriage that is voidable under IC 31-11-9-3 on the ground that the marriage was brought about through fraud on the part of one (1) of the parties to the marriage.
(b) The alleged victim of fraud described in subsection (a) may file an action to annul the marriage in a court that has jurisdiction over the action under section 3 of this chapter.
(c) It is a defense in an action brought under this section that, after the discovery of the alleged fraud, the alleged victim continued to cohabit with the other party to the marriage.

Anyone thinking about an annulment where the other spouse may contest the case, needs to take a hard look at 31-11-10-2(c).

Which raises an important difference between annulments and divorce: the petitioner in an annulment case faces the very real chance of losing the case. Remember that in an annulment case, the petitioner must prove the fraud and all its elements whereas in a divorce the petitioner must only say that the marriage is irretrievably broken.

Which leaves me still wondering why anyone having a case where the grounds would be fraud or age or mental incompetence would choose annulment over divorce.

Out of Florida: Young Woman, Older Man, and Money

I never heard of a marriage annulled after the death of a spouse, but then how often do these kind of cases come up? From the Florida Times-Union out of Jacksonville comes Sad, final days in 'sham marriage'. It is a long story, a lurid story, and here are the highlights:

BILLY SHELTON Suffering from dementia, his bank account was cleaned out, a judge says KHADIJA RHOUALMI She was 34 years younger, but captured his heart - and exploited his mind.

***

She was a 38-year-old student and restaurant worker who professed her undying love and eventually married him.

But the relationship between Billy Shelton and Khadija Rhoualmi was no May-December romance.

In fact, a probate judge said, it was an "extreme fraud" cooked up by Rhoualmi and her lawyer boyfriend to bilk Shelton out of his considerable assets by taking advantage of his deteriorating mental health before his 2006 death.

"It was a sham marriage," Circuit Judge Peter Dearing wrote in a decision finalized last month. "... Shelton was an incapacitated, vulnerable and elderly adult who was exploited, unduly influenced and defrauded by Rhoualmi."

The scam was so audacious the judge took the rare step of posthumously annulling the marriage.

His order undid a prenuptial agreement and will and two deeds that gave Rhoualmi title to Shelton's riverfront home and St. Johns Nursery & Tree Farm in Fruit Cove, valued at more than $3 million. He ordered her to repay $54,000 she drained from his bank accounts. The judge said she was "actively assisted" by her lover, attorney Henry Swann.

Before anyone gets into lawyer bashing mode consider this paragraph:

A month later, two doctors hired by Shelton's lawyers found him suffering from a form of dementia and mentally incompetent to make financial and legal decisions. Dearing determined in June 2006 that he was incapacitated and appointed his son as guardian.

And I certainly agree with these sentiments:

He and attorney Meux said the case offers valuable lessons about the vulnerability of some elderly people.

"It's always possible that somebody can be out there to take advantage of them," Meux said. "It should be a wake-up call to family members to make sure that someone's watching over your relatives."

Annulment in Indiana: Information from the Lafayette Diocese

Is it that I find the unexpected things while using Google or is it that I find them because I can recognize them when I see them? I guess it really does not matter - unless I go off on a tangent and spend time surfing the Web for hours when I am supposed to be working.

What I found was a web page from the Lafayette Diocese on annulments. Understand that this page has nothing to do with Indiana's law on annulments (for that take a look at my post here) and everything to do with Roman Catholic canon (church) law.

Annulment in Indiana

Let me explain a few things about annulment in Indiana:

It is certainly not a substitute for dissolution of marriage.

Annulment differs greatly from divorce. Annulment does not dissolve the marriage. Annulment means there never was a marriage.

Annulment has very specific grounds to prove. One cannot just appear before the judge and say that the marriage is irretrievably broken. The grounds for annulment divide into two broad categories.

The first category requires that the petitioner was under 18 years or was mentally incompetent to marry. If the potential client was past 18 years of age when married or appears mentally competent, that leaves the second category of annulment cases.

The second category requires fraud on the part of the non-petitioning party. That fraud must have lead to the petitioner marrying the fraudster. If that were not enough of a difficulty, the statute states that the petitioner living with the spouse after discovering the fraud is an affirmative defense for the respondent.

If you can get past these hurdles, the procedure follows those of divorces. Annulment is another narrow type of legal action. Maybe even more narrow than legal separation.

It has been a while since I had a divorce client inquiring about annulment. Used to be, annulment would come up about every eighteen months or so. I was always curious about the interest in annulments. I never got a good answer for the interest in annulment. When I asked, no religious reasons were offered. I got a vague impression that someone told them that it might be easier or more palatable than a divorce. Some times I was left wondering if someone had watched The Wives of Henry the Eighth one too many times. When I explained annulments, their interest withered.