Amanda Lawson said:
I have been married for 3 1/2 years and I live in Los Angeles County, CA. My husband told me two months ago that he's gay and moved out. He has known that he was gay since before the marriage. I had no idea. We have no children and own no real estate. Can I get an annulment? If so would the grounds be fraud or something else?
My response:
You hit the "jackpot". Not only are you eligible for an annulment, but you get to go past that by having your married judged a "Nullity". That means it gets completely wiped off the books, as if you never even applied for a marriage license !
Nullity of marriage can be obtained when either party's consent to the marriage 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 relation . . ." [Marriage of Johnston (1993) 18 Cal.App.4th 499, 502, 22 Cal.Rptr.2d 253, 255 (emphasis in original); 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. [Mayer v. Mayer (1929) 207 Cal. 685, 279 P 783; Handley v. Handley (1960) 179 Cal.App.2d 742, 3 Cal.Rptr. 910]
I believe that being queer "goes to the very essence of the marital relation" and any judge would grant you such a dissolution, based upon nullity.
Your problem, however, is getting him to admit his "queerness" in writing or in open court, so that a judge would give you a dissolution by nullity.
Good luck.
IAAL
