It seems that everyone is “Keeping Up With the Kardashians” these days., especially since Kim married NBA power forward Kris Humphries, filed for divorce a mere 72 days later, and allowed E! to tape the entire thing. Although the show itself is concerned with the mundane and superficial everyday occurrences of the fabulous Kardashian clan, Kim’s recently defunct marriage makes for meatier fare, including some unique family law issues, the implications of which may result in millions of dollars of gain or loss between the parties.
What we are speaking about, of course, is the Kardashian-Humphries’ premarital agreement and the possible effect, if any, Kris Humphries’ Petition for Annulment may have on the validity of the prenup.
It has been widely reported that Kim’s prenup is “ironclad” and protects her reported net worth of $35 million, as well as classifies all of her earnings during the marriage as her own, leaving Kris to survive on his relatively paltry 2011 earnings of $3.2 million from the New Jersey Nets. Reportedly, Kim earned approximately $18 million during the courtship and marriage to Humphries. The sources of her income are as varied as the sale of wedding pictures to People Magazine, the publicity connected with her bachelorette party at Las Vegas nightclub Tao, and the massive deal she inked with E! to air the crazy antics that ensued.
On October 31, 2011, Kim filed her Petition for Dissolution of Marriage, citing irreconcilable differences. After the requisite lamentations, Kris and his counsel responded by filing a Petition for Annulment on December 1, 2011, claiming that the marriage was induced by Kim’s fraud. Chris’ expressed reasons for filing for an annulment in lieu of a divorce range from his religious beliefs to gaining the ability to speak freely about his time with Kim, which is currently prohibited by the confidentiality clause in the prenup. Regardless of his reasons, the bottom line is that invalidating the prenup will mean that Chris will be free to gain, financially, from his side of the story as well as get a larger share of the earnings from their 72 day marriage, which otherwise would be classified as marital earnings and treated as community property but for the existing premarital agreement.
There is an important distinction between a divorce and an annulment: a divorce dissolves a valid marriage, whereas an annulment establishes that due to a legal defect, the marriage never legally occurred. That distinction is of the utmost importance because California law defines a premarital agreement as “an agreement between prospective spouses made in contemplation of marriage” (sec 1610), which “becomes effective upon marriage.” (Sec. 1613). If the marriage is invalidated, then the agreement will not be enforceable unless it would be inequitable not to enforce it (Sec. 1616).
Kris’ argument may go something like this: Due to Kim’s fraud, Kris was induced into marriage. Since the marriage is invalid, the premarital agreement never became effective and therefore is unenforceable, leaving the millions earned during the parties’ marriage, which otherwise would be protected by the prenup, to be divided by the default rules of the State of California (i.e. community property subject to 50/50 division). In order to be successful, Chris must prove that the marriage should be annulled because he was fraudulently induced to enter the marriage.
Kris faces a Herculean task in proving fraud to annul the marriage. It will not be enough to say that Kim married Kris for TV ratings or lied about her eternal commitment to him. In California, “a marriage may only be annulled for fraud if the fraud relates to a matter which the state deems vital to the marriage relationship.” (Bruce v. Bruce (1945) 71 Cl.App.2d 641). In general terms, California courts have traditionally found fraud only when it relates to the parties’ sexual proclivities or ability to procreate.
If Kris successfully proves that there was fraud, then the prenup is deemed invalid unless the court determines it is inequitable to do so. Given their respective earnings, both parties will have a very difficult time convincing the court that any outcome would be inequitable to them.
While it seems that Kris’ chances of prevailing in court are well outside his shooting range, his attorney may be using the annulment filing as a tactic to gain leverage in order to induce a more favorable settlement than was initially bargained for in the premarital agreement, the idea being that Kris will quietly find his way back to the locker room for a few extra dollars. However, his tactic may be geared for the traditional opponent, meaning a “normal” person who doesn’t enjoy having the inner workings of his or her personal life splashed all over court documents and the news. However Mr. Humphries is married to a certain socialite whose initial celebrity was based on her exploits in a candid erotic video and who earns her dollars from a steady stream of gossip-inducing media attention.
However the ball eventually bounces, the moral for athletes, entertainers and anyone else who is involved in a unique, high-asset marital courtship and break up, is that they have to choose the best players for their legal team in order to keep the game close. Otherwise they may lose the game before the first whistle blows.