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California - Anulling/voiding marriage after death

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CA_Beneficiary

Junior Member
My Father ended up marrying a woman whom he thought he knew, and he died 6 weeks after their marriage. During the past two years, we've learned that she had no college education (She had told our Father that she was a Stanford University Graduate), was a convicted felon (Grand Theft, Check Forgery, Embezzlement, etc...), and had a huge restitution order hanging over her head that our Father was unaware of (around $100,000). My Father was a heavy drinker, was suffering from the later stages of Cirhosis of the Liver, and was not altogether there. On the Marriage License they signed, the woman falsely wrote an incorrect birthdate and age to appear 6 years younger.

Could a situation like this result in a post-partem anullment or voiding of their marriage based upon either her fraudulent portrayal of herself as a different person or upon her deliberate falsification of the notorized marriage license/certificate?
 


This one stumped me. I couldn't find anything on it. But it sounds like its fraud since she put down the wrong birthday. Get a lawyer and contest her marriage validity.
 

I AM ALWAYS LIABLE

Senior Member
CA_Beneficiary said:
My Father ended up marrying a woman whom he thought he knew, and he died 6 weeks after their marriage. During the past two years, we've learned that she had no college education (She had told our Father that she was a Stanford University Graduate), was a convicted felon (Grand Theft, Check Forgery, Embezzlement, etc...), and had a huge restitution order hanging over her head that our Father was unaware of (around $100,000). My Father was a heavy drinker, was suffering from the later stages of Cirhosis of the Liver, and was not altogether there. On the Marriage License they signed, the woman falsely wrote an incorrect birthdate and age to appear 6 years younger.

Could a situation like this result in a post-partem anullment or voiding of their marriage based upon either her fraudulent portrayal of herself as a different person or upon her deliberate falsification of the notorized marriage license/certificate?

My response:

An action for nullity survives the petitioner spouse's death (per Ca Civ Pro § 377.20). The deceased petitioner's personal representative may be substituted into the action (see Ca Civ Pro § 377.30 et seq.), whereupon the issue of whether a valid marriage ever existed is then properly brought to judgment before the family law court. Where there are grounds for a nullity proceeding (e.g., fraud), this "survival" feature may offer significant advantages to a terminally-ill or aged spouse . . . because a judgment of nullity (adjudication that there never was a valid marriage) will cut off the other spouse's "surviving spouse" claim to a share of the deceased spouse's estate. [Marriage of Goldberg (1994) 22 Cal.App.4th 265, 271, 273, 277, 27 Cal.Rptr.2d 298, 301, 303, 305]

The problem, however, is proving your allegations. A mere incorrect birthdate does not qualify for annulment - - if that were the case, all of Za Za Gabor's husbands could have filed nullity actions instead of dissolution actions. As for the rest of your "facts", they too do not meet the standards for nullity grounds. It was up to your father to "research" his then prospective wife-to-be. He didn't.

California Grounds for Annulment (Nullity) of Marriage - -

A marriage or domestic partnership is "voidable" and thus a nullity from the time it is so adjudged if any of the following conditions existed at the time the marriage/domestic partnership was contracted (Ca Fam § 2210):

Minority:
The party who commences the nullity proceeding (or on whose behalf it is commenced) was under the age of lawful consent (under age 18) and did not obtain the requisite parental/court consent . . . unless, after attaining age 18, the party "freely cohabited with the other as husband and wife." [Ca Fam § 2210(a)]

Prior existing marriage/domestic partnership:
Either party was legally married to another or a member of another domestic partnership, but the subsequent marriage or domestic partnership is not illegal and void because within the § 2210(b)(1) & (3) "voidability" rule (former spouse/domestic partner absent for five years and not known to be living or generally reputed to be dead. [Ca Fam § 2210(b)]

Unsound mind:
Either party was of "unsound mind" (unable to understand the subject matter of the marriage/domestic partnership contract and obligations incident thereto) unless, "after coming to reason," he or she "freely cohabited with the other as husband and wife." [Ca Fam § 2210(c); Dunphy v. Dunphy (1911) 161 Cal. 380, 383, 119 P 512, 513]

Fraud:
Either party's consent to the marriage or domestic partnership was obtained by "fraud," unless the defrauded party thereafter, and with full knowledge of the facts constituting the fraud, "freely cohabited with the other" as husband and wife. [Ca Fam § 2210(d)]

Sufficiency of fraud:
The type of "fraud" sufficient to support a judgment of nullity "must go to the very essence of the marital [or domestic partnership] relation . . ." [Marriage of Johnston (1993) 18 Cal.App.4th 499, 502, 22 Cal.Rptr.2d 253, 255 (emphasis in original; brackets added); Schaub v. Schaub (1945) 71 Cal.App.2d 467, 476, 162 P.2d 966, 971]

Thus, fraud or deceit sufficient to avoid an ordinary contract will not necessarily warrant a judgment of nullity. The alleged misrepresentation or concealment must have been "vital to the relationship," directly affecting the purpose of the deceived party in consenting to the marriage/domestic partnership. [Mayer v. Mayer (1929) 207 Cal. 685, 279 P 783; Handley v. Handley (1960) 179 Cal.App.2d 742, 3 Cal.Rptr. 910]

Nor is there sufficient fraud to annul a marriage simply because a party concealed a severe drinking problem (or, presumably, drug addiction), refused to seek employment after contracting the marriage (despite assurances before marriage to the contrary), proved to be a "disappointing" sexual partner, and/or turned from a "polite" and "nice" person before marriage to a "dirty," "unattractive" and disrespectful person after the marriage. A finding of § 2210(d) fraud cannot rest solely on the fact a spouse "turned from a prince into a frog." [Marriage of Johnston, supra, 18 Cal.App.4th at 500-502, 22 Cal.Rptr.2d at 254-255--that "husband turned out to be, in the eyes of his wife, a lazy, unshaven disappointment with a drinking problem" not sufficient grounds for annulment]

Force:
Either party's consent to the marriage or domestic partnership was obtained by "force," unless the coerced party thereafter "freely cohabited with the other" as husband and wife. [Ca Fam § 2210(e); see Marriage of Weintraub (1985) 167 Cal.App.3d 420, 422, 213 Cal.Rptr. 159, 160--W abducted by H and forced to marry him by force, beatings, intimidation and threats to W's and her family's safety]

Physical incapacity:
Either party was "physically incapable" of entering into the marriage state (unable to engage in normal copulation) and such incapacity continues and appears to be "incurable." [Ca Fam § 2210(f); Stepanek v. Stepanek (1961) 193 Cal.App.2d 760, 762, 14 Cal.Rptr. 793, 794]


IAAL
 
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CA_Beneficiary

Junior Member
Grasping at Straws

Thanks for the information. I thought that this was tenuous at best. Next scenario: She claims to have "just" divorced her previous husband prior to marrying our father (who was fading fast). We are searching all the counties she onced lived in to find her finalized divorce papers, but we have found nothing to date. If we learn that she did not finalize her divorce prior to marrying our Father, then could we have their marriage voided?
 
No the marriage would not be voided because of an unfinished divorce because it would have NEVER been a marriage. Meaning the marriage to your father was never valid so you can't void something that wasn't valid in the first place. If you have the money hiring a detective would really help with that search.
 

I AM ALWAYS LIABLE

Senior Member
CA_Beneficiary said:
Thanks for the information. I thought that this was tenuous at best. Next scenario: She claims to have "just" divorced her previous husband prior to marrying our father (who was fading fast). We are searching all the counties she onced lived in to find her finalized divorce papers, but we have found nothing to date. If we learn that she did not finalize her divorce prior to marrying our Father, then could we have their marriage voided?

My response:

Bigamy is a ground for annulment (see above).

Good luck locating a marriage certificate and a decree of dissolution. It's like looking for a needle in a haystack.

IAAL
 

rmet4nzkx

Senior Member
The divorce would have to be filed in the county of residence, she should be able to provide a copy of the divorce decree or reference to the county so you can look up the records, if she was not divorced than the marriage could be annuled. If some of the other frauds can be proven and that your father didn't know it is also possible.
 

I AM ALWAYS LIABLE

Senior Member
rmet4nzkx said:
The divorce would have to be filed in the county of residence, she should be able to provide a copy of the divorce decree or reference to the county so you can look up the records, if she was not divorced than the marriage could be annuled. If some of the other frauds can be proven and that your father didn't know it is also possible.

My response:

rmet4nzkx, first, if I was her, I'd tell our writer to "go pound sand." Why would you think she'd give him the "rope that would be used to hang" herself?

Second, what "other fraud" are you referring? And, let's assume that there was some other "fraud". How would our writer prove it? The father is dead!

Additionally, you need to read what I had written, above - -

"Thus, fraud or deceit sufficient to avoid an ordinary contract will not necessarily warrant a judgment of nullity. The alleged misrepresentation or concealment must have been "vital to the relationship," directly affecting the purpose of the deceived party in consenting to the marriage/domestic partnership."

How does our writer prove that?

IAAL
 
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CA_Beneficiary

Junior Member
Entangled in Probate

We are still in the Probate process. If a marriage is suspected of being false, couldn't the Estate Administrator (a third-party, neutral agency) compell the "omitted spouse" to produce evidence proving the validity of her marriage to our Father? Including the marriage certificate (which we have a copy of) and her final divorce decree?
 

I AM ALWAYS LIABLE

Senior Member
CA_Beneficiary said:
We are still in the Probate process. If a marriage is suspected of being false, couldn't the Estate Administrator (a third-party, neutral agency) compell the "omitted spouse" to produce evidence proving the validity of her marriage to our Father? Including the marriage certificate (which we have a copy of) and her final divorce decree?

My response:

No. Not unless you have proof of your allegations. Absent that, you're stuck. She doesn't have to prove anything. It's up to you, as an Estate Contest Petitioner to prove YOUR allegations. She has no obligation other than to attest to her former marriage and that it was dissolved. In other words, all she has to do is file a sworn Declaration. It's your job to prove that she has perjured herself.

IAAL
 

rmet4nzkx

Senior Member
Well if she was claiming to be recently divorced, then she should have no problem providing the information, obviously her response to the question would be telling, wouldn't the marriage license have a question as to marital status?

As I said, other frauds if they exist would have to be proven, such as consealing the criminal history and unpaid restitution $100K???

Interesting that these types of marriages result in water deaths, I know of one in N CA where the wealthy widow married a Rodeo rider and was drowned in a lake about 6 weeks later, they are still in court, years later.
 

I AM ALWAYS LIABLE

Senior Member
rmet4nzkx said:
Well if she was claiming to be recently divorced, then she should have no problem providing the information, obviously her response to the question would be telling, wouldn't the marriage license have a question as to marital status?

MY RESPONSE: What? She has NO OBLIGATION to prove someone's allegations. Don't you get it? She doesn't have to provide squat.



As I said, other frauds if they exist would have to be proven, such as consealing the criminal history and unpaid restitution $100K???

MY RESPONSE: And, how would those "facts" rise to the level of fraud? Let's assume, for the moment, that dear old dad knew these facts. How would you prove that he didn't? All she'd have to say is that Dad knew, and accepted her for who she was, including all of her faults and financial burdens. Now what?


IAAL
 

CA_Beneficiary

Junior Member
IIAL - - - You are tough, but you are fair. Better to learn this from you then be swatted about in court and dismissed out of hand by the judge. Last scenario for the evening: We've checked the family courts of every county she's lived in for the past 10 years and there are no records of her divorce decree from her previous husband. No records whatsoever. However, she claims that somewhere between May of 1998 and May of 2003 was when she got her divorced (she vacillitates a bit); yet we can find no record.

Would this be sufficent for the judge to request that the "Omitted Spouse" produce her divorce decree to address this lack of record on file? Basically, we're saying she never got divorced, the county record offices from 5 different counties and 3 different states show no records; therefore, until she produces the record would our allegation stand against her? Or could she just counter with, "Sorry, we got divorced in County 'G'". Whereby we go to County 'G' find no records, and then she could say, "Did I say 'G', I meant 'H'", and so on. Basically, could she continue to lead us along perpetually despite our repeated attempts to show that no records exist?
 

I AM ALWAYS LIABLE

Senior Member
CA_Beneficiary said:
IIAL - - - You are tough, but you are fair. Better to learn this from you then be swatted about in court and dismissed out of hand by the judge. Last scenario for the evening: We've checked the family courts of every county she's lived in for the past 10 years and there are no records of her divorce decree from her previous husband. No records whatsoever. However, she claims that somewhere between May of 1998 and May of 2003 was when she got her divorced (she vacillitates a bit); yet we can find no record.

MY RESPONSE: As a lawyer, I have to be tough. It's my job, and it's in my nature. I'm trying to make you prove YOUR allegations - - and from what I'm reading, you can't. You're the one with the burden of proof, not her.

Also, you're apparently only checking California. What if she was divorced in Bumfuk, Ohio?

Like I said, "Needle in a haystack."




Would this be sufficent for the judge to request that the "Omitted Spouse" produce her divorce decree to address this lack of record on file?

MY RESPONSE: A judge is not a advocate. Your attorney is your advocate. A judge isn't going to ask her anything. Remember, bigamy is a crime, so all she'd have to do, if asked, is stand on her Fifth Amendment right against Self-Incrimination. So, if your attorney can't come up with the proof, guess what?





Basically, we're saying she never got divorced, the county record offices from 5 different counties and 3 different states show no records; therefore, until she produces the record would our allegation stand against her?

MY RESPONSE: I know what you're saying. But, it's apparent to me that you haven't understood what I've been writing. I'll say it again - - she DOES NOT have the burden to prove YOUR allegations. That's your job!



Or could she just counter with, "Sorry, we got divorced in County 'G'".

MY RESPONSE: Again, all she needs to do is tell you to "go pound sand." She doesn't need to prove anything. All she needs to do, in her paperwork, is declare that she was the rightful, lawful, spouse of your father.




Whereby we go to County 'G' find no records, and then she could say, "Did I say 'G', I meant 'H'", and so on. Basically, could she continue to lead us along perpetually despite our repeated attempts to show that no records exist?

MY RESPONSE: I'm done. This is getting ridiculous.


IAAL
 

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