Eligible for Annulment?

[charsteer]

My daughter had a baby with, and then married, an illegal immigrant from Mexico. 7 months later he went back to Mexico and she hasn't seen him since. She later had a very brief exchange with him when he was trying to get her to send him money but all phone calls from him ceased when she confronted him with the fact the he had molested her then 4 year old daughter.
We're in California and the baby they had together is 3 years old. He has never seen or talked to his father. They have no phone in Mexico so any conversation was always initiated by him.
Could she qualify for an annulment due to desertion? She also believes he married her just to get a green card. How much proof does there need to be to prove fraud?
Thanks.

 

[I AM ALWAYS LIABLE]

My daughter had a baby with, and then married, an illegal immigrant from Mexico. 7 months later he went back to Mexico and she hasn't seen him since. She later had a very brief exchange with him when he was trying to get her to send him money but all phone calls from him ceased when she confronted him with the fact the he had molested her then 4 year old daughter.
We're in California and the baby they had together is 3 years old. He has never seen or talked to his father. They have no phone in Mexico so any conversation was always initiated by him.
Could she qualify for an annulment due to desertion? She also believes he married her just to get a green card. How much proof does there need to be to prove fraud?
Thanks.

My response:

A marriage 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 was contracted (Ca Fam § 2210):

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)]

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]

A judgment of nullity based on fraud is also warranted where one party's motive in entering the marriage was solely to obtain a green card (to acquire U.S. residency status) and he or she never intended to engage in sexual relations with the other or to meet marital duties. [Marriage of Liu (1987) 197 Cal.App.3d 143, 242 Cal.Rptr. 649]

IAAL

 

[LegalBeagle]

My daughter had a baby with, and then married, an illegal immigrant from Mexico. 7 months later he went back to Mexico and she hasn't seen him since. She later had a very brief exchange with him when he was trying to get her to send him money but all phone calls from him ceased when she confronted him with the fact the he had molested her then 4 year old daughter.
We're in California and the baby they had together is 3 years old. He has never seen or talked to his father. They have no phone in Mexico so any conversation was always initiated by him.
Could she qualify for an annulment due to desertion? She also believes he married her just to get a green card. How much proof does there need to be to prove fraud?
Thanks.

He could not have got a green card anyway since he entered the US illegally.