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The Terry McMillan Divorce Case: Will She Get an Annulment? Will He Split Her Book and Film Money?


Monday, Aug. 22, 2005

Last Christmas, bestselling author Terry McMillan and her husband Jonathan Plummer called it quits. Their fairy tale May-December marriage (McMillan is 53; Plummer, 30) became another celebrity casualty - but with an added twist. Allegations of misrepresentations, deceit, adultery and a homosexual liaison added to the already juicy details of this broken relationship. And McMillan is fighting Plummer's claim to her fortune.

If this had been a younger woman/older man scenario, many would be up in arms crying sexism if the young woman were being deprived of her marital benefits. But many find the younger Plummer - who McMillan says enticed her into a sham marriage -- less sympathetic.

The bottom line in all of this drama, however, is the legal issue of how the marital property will be distributed. After the love is gone, the only thing left is the property.

Though many women (and yes, some men) get caught up with the emotional component of marriage, they often fail to understand that if the relationship goes south the only redeeming grace is the property. And in this case, the property at issue is worth a fortune.

How McMillan Got Her Groove Back - For A While

When they met, McMillan's book-to-film blockbuster "Waiting to Exhale" had already made her rich and famous. (The movie version of "Waiting to Exhale" grossed $67 million at the box office, and paperback rights went for $2.7 million.)

Then, after meeting Plummer - twenty-three years her junior - on a Caribbean vacation, McMillan cemented her fame with "How Stella Got Her Groove Back."

At the time, McMillan decided she couldn't live without Plummer so she brought him to America, married him, paid for his education, and set him up in a dog grooming business.

In the novel - quite similarly -- the protagonist, Stella, goes to Jamaica and comes back renewed after a fling with a younger man. She eventually brings him to the U.S. to live with her and her son.

The Dramatic Allegations Made By Both Sides

McMillan says all was well in her marriage to Plummer until she discovered his relationship with a man in Jamaica and visits to gay porn sites. Now, she says she believes their marriage was a sham - with Plummer pretending to be straight, when he was, in fact, gay.

Meanwhile, Plummer - who's appeared on talk shows to explain his position - admits he is gay but says he only recently came to terms with his homosexuality.

Plummer also claims McMillan is so homophobic that her actions towards him amount to harassment. Her rage, he says, has led to his filing for a temporary restraining order.

Is the Prenup Void or Valid? The Issue of Plummer's Capacity to Marry

McMillan and Plummer signed a prenuptial agreement. To determine if such an agreement is valid, courts typically look to whether the parties had counsel; whether they understood what they were signing; and whether there was duress.

Plummer might try to get the prenup voided on one of these grounds - alleging that he lacked a lawyer, did not understand the contract, or was made to sign -- in order to receive more money than the prenup guarantees him. He says the prenup guarantees him book royalties, but what about the movie? Movie site BoxOfficemojo reports that the film version of "Stella" grossed over $37 million, with a production budget of $20 million - making a healthy profit.

Meanwhile, McMillan and her lawyer now want the marriage annulled, and the prenup invalidated, on grounds that he lacked the legal capacity to marry. (The concept of annulment is to have the court declare that there was no marriage from the outset. If he had no legal capacity to marry, then there was no marriage.)

More specifically, McMillan and her attorneys argue that if Plummer wasn't heterosexual at the time of the marriage (or at least bi-sexual), then he didn't have the capacity to marry her.

If that's true, then no marriage existed; the prenup is void since a precondition to it - marriage - never took place; and palimony rights may be the only ones Plummer is left with. (California courts have held that even if McMillan held Plummer out to be her husband for the past six years, and never married him, he could still have a property interest in the marital estate through "palimony" rights.)

The Problem with McMillan's Argument: The Subtleties of Sexuality

The line of reasoning supporting McMillan's bid for an annulment seems to fall short, however, given the fact that the two were married for six years - and that McMillan does not suggest the marriage was never consummated.

Could Plummer have believed he was straight (or bisexual) when he married McMillan? J.L. King, author of On the Down Low: A Journey Into the Lives of 'Straight' Black Men Who Sleep With Men thinks not: He asserts in a Washington Post article about the drama around McMillan's divorce that Jonathan must have known he was gay when he married her. (King, now the most well-known expert on the "down low," hid his own liaisons with men from his former wife.)

King's comments seem to suggest that one's sexuality is fixed - and that one is always aware of one's true sexuality. But is that really the case? Or can sexuality change over time - or be unknown even to the person in question? Can a person know his or her sexuality in one level, but at another level, be in denial?

Significantly, it will be McMillan who bears the burden of proof to show that Plummer's sexuality was fixed as gay, and known to him, at the time they entered into the union. If the matter goes to trial, an expert witness in the field of sexual behavior will doubtless weigh in.

But if Plummer himself credibly testifies that he believed he was straight at the time they married, he may successfully prevent an annulment -- and that, in turn, may mean the prenup is enforceable (or, if he were to void the prenup, that he would enjoy the typical property rights of a divorcing spouse).

Interestingly, the overarching legal reason for divorce in situations like this is usually "irreconcilable differences," not deceit. This fact suggests that in the end, rather than receiving an annulment based on Plummer's original sexual orientation, McMillan may be more likely to receive a divorce based on their current dispute.

On the whole, it seems that McMillan should probably come to grips with the fact that she was legally married to Jonathan. The best she can hope for, it seems, is that the court agrees that Jonathan willingly signed the prenup - and enforces the agreement to limit his share.

Otherwise, she may have to face a large claim from him. And other questions will arise: Assuming the court determines that McMillan and Plummer were in fact married, does he have an interest in McMillan's work? (He claims he was the inspiration for "Stella" but does mere inspiration grant property rights?) Should he be allowed to reap the fruits of her celebrity?

Perhaps Jonathan Plummer can strike a deal with Ms. McMillan before court proceedings go further. The court has allowed him spousal rights and attorneys fees until the final hearing in October; perhaps the judge agrees that he needs financial support for the time being, to help him get on his feet.

For Plummer, the stakes are high: Voiding the prenup might mean a huge payday for him. But at the same time, if McMillan does score an annulment, his recovery might be more modest.

What's love got to do with it? Not much, when it comes down to property rights.

Barbara Bernier is a first generation Haitian-American. She is currently a professor of law at Florida A&M University College of Law in Orlando, Florida. She has published in many journals including William and Mary Journal of Women and the Law, Harvard BlackLetter Law Journal and the Washington and Lee Race and Ethnic Ancestry Law Journal. She teaches Constitutional Law, Contemporary Legal Theories and Property law. Professor Bernier was a Visiting Scholar at Harvard University School of Divinity where she studied law, religion and witchcraft.

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