In California, as in other US states, divorce is not the only way to end "a marriage." There is also the option of legal separation, if the marriage was valid; and of annulment, if it was not.
An annulment declares that a marriage never was legally valid to begin with, after it had been presumed to be so previously. It has some of the same effects as a divorce, but in other ways, its impacts will differ.
At San Diego Divorce Attorney, we understand the details of California law as to annulments as well as the intricacies of the annulment process. We can help you understand if annulment is an option in your legal situation and guide you step by step through the annulment process should you opt to pursue an annulment.
To learn more or for a free legal consultation, do not hesitate to contact us today by calling 858-529-5150.
Who Qualifies for Filing for an Annulment in California?
Contrary to popular belief, you cannot automatically qualify for an annulment in California just because your marriage took place very recently. A legal separation or divorce has no special requirements attached to it (California is a "no fault divorce" state), but annulments do.
The reason for this difference is found in the nature of what an annulment is. It's a declaration that the supposed marriage was never legally valid to begin with, and only certain special circumstances can make such a declaration true and legally valid.
And let us also be clear that we are speaking here of civil annulments, not "religious annulments," which in certain Christian denominations, may have a religious status. Religious and civil annulments are completely different legally, despite sharing the common name "annulment."
So, what valid legal bases exist in California for an annulment? Here they are:
- If the marriage was between two blood relatives, that is, if it was incestuous. But this does not include marriages between cousins. Even first cousin marriages are legal in California, though not in all US states. Examples of invalid blood-relative marriages include marriage to one's sibling, half-sibling, parent or ancestor, child or descendant, aunt or uncle, or niece or nephew.
- One spouse was already married to someone else at the time of the union. This is "bigamy." The first marriage in such instances is legal but not the following ones. But if a spouse was generally believed to be dead or at least not known to be alive for the previous 5 years, a bigamous marriage is considered more of an "accident" and therefore is not automatically void but is still "voidable" if the other spouse seeks an annulment.
- One or both marriage partners were underage at the time of union. That means under 18. But if, though underage, the spouse obtained his/her written parental consent (one parent only is needed) and a court order permitting the underage union, then it is valid and can't be annulled on those grounds. Plus, the right to annul an invalid underage marriage expires four years from turning 18 if the two cohabitated willingly as spouses during that period of time.
- The marriage was done by force or fraud. For a marriage to be valid in California, both parties must have given their consent to it and without having been duped into it through an act of fraud. This could be such situations as a person who marries just to get a green card, or a person hid his/her inability to have sex or have children. It cannot be things like pretending to wealthy or "good" only to later be discovered poor and "bad." It can't just be an incidental matter or a "prince who turned out to be a frog." As to forced marriages, it could be physical force; but it could also be some for of threat that was used to force the marriage. Note that the right to annulment due to force/fraud expires after 4 years.
- One of the spouses was of an unsound mind at the time of the marriage. If mental handicap or illness prevented the possibility of true consent, then the marriage can be annulled. Relatives may petition for it if the spouse is still of unsound mind. And there is not statute of limitations to this ground of annulment. It is also possible for extreme intoxication while getting married to count as being of an unsound mind for annulment purposes.
- "Incurable physical incapacity." Even if it occurs after a valid marriage, if either spouse suddenly is incapable of sexual relations or if a wife is found incapable of having children, the marriage can be annulled. But if one lives 4 years with his/her spouse with knowledge of such condition, then right to annulment ceases. Plus, this incapacity has to be shown to be "incurable."
Thus, you can see that there are very limited and strict reasons that are valid grounds for an annulment, and no more. Plus, many of these grounds are subject to statutes of limitations. And the burden of proof is on the one filing for the annulment to prove such grounds exist.
This is why annulments are far less common than divorces. There are cases where an annulment is legitimate; but even then, you need expert help from an attorney to help ensure the annulment petition succeeds (because filing is one thing, but getting a court to order an annulment is another.)
The Annulment Process in California
As to process, filing for an annulment is very much like filing for a divorce in California. And there are numerous steps, forms, and legal requirements along the way that you should rely on an experience family law attorney to guide your through. A misstep can delay or even prevent the annulment, so you can't just assume you can "go it alone."
And, on the others side of the legal coin, if you are facing what you deem an illegitimate petition for annulment, you will need expert legal advice to successfully oppose the annulment.
Also, note that if you are filing for annulment based on underage marriage or based on force or fraud, you have four years (from the date of the marriage ceremony or the date of you turned 18) to file or you lose that right forever. If you only later discovered the fraud, however, you have 4 years to file from the date of discovery of the fraud. And you have to file also within 4 years of the date of marriage, if you are filing for annulment based on incurable physical incapacity.
But with bigamy, annulment can be filed so long as the other, previous spouse of your spouse is still alive.
During the annulment process, you will find there are many complex forms, deadlines, and court fees. And there will ultimately be an annulment hearing. Here are the major steps of the process:
- You file the petition for annulment to initiated the process, and sign it. The form you must fill out is called "FL-100" and is the same form used to file divorce. But you check the box marked "nullify" instead of "dissolve" in reference to the marriage.
- Next, you have to provide some basic information on the marriage you wish to get annulled, including such things as both spouse's names, the date of your union, and what grounds you are asserting as a basis for the petition. You must also tell the court about any children from the marriage and you can mention additional relevant information if you think it will help your case.
- The next step in the process is to serve your spouse notice of the annulment petition you have filed. Your attorney will likely hire someone to serve the papers to him/her in person and get proof they were served to give to the court. In some cases, serving by mail can take place, however. And if a spouse just ignores the serving of the notice and does not file a response, a default process can still proceed.
- There may be further paperwork you have to file based on which county you file in. Your lawyer will inform you if you need to fill out some extra forms. And if you have children from the marriage you seek to annul, there will be forms related to child custody and visitation rights, besides a process for child support determination. You have to file your petition and all other needful forms with the county Superior Court clerk and pay any required fees.
- Finally, you will have to attend an annulment hearing with you lawyer; and your spouse and his/her lawyer should attend as well. Here, you can present you case and add any extra details not included in the petition for annulment. The judge will hear both sides and make his/her decision. The petitioner must meet the burden of proof and present convincing evidence in order to prevail. You may even need to call in some witnesses to help show the marriage was invalid. Sometimes, decisions are given on the spot verbally, but they often are just mailed to each party's lawyer.
What Happens After an Annulment?
If your petition for annulment is denied, you may be able to try to correct any forms if it was based on a technicality or even appeal or try again if you feel you have more evidence or were treated unfairly. But, otherwise, the marriage stands. Divorce or legal separation are sometimes filed, however, after an annulment petition fails.
But if the annulment petition is approved by the Family Court judge, the marriage will be viewed by the law as if it had never occurred (because, legally, it didn't.)
First, note that all marital community property must be divided equally and fairly, while separate property is retained by each former spouse. But there is no right to spousal support since the marriage was invalid.
And you and your former "spouse" must divide the property yourselves without court intervention since the marriage "never existed." Of course, stealing is still illegal, but separate action would have to be taken to rectify a wrongful division of the property.
Child custody and visitation and child support issues still apply, however, because that is based on being parents of the same child, not on there having been a marriage.
But one of the biggest issues that comes up after an annulment is that of paternity. There is a "presumption of paternity" since you and your spouse lived together as if married for, perhaps, years. But, nonetheless, the judge has to establish paternity before child support, child custody, and visitation ("parenting time") schedules can be dealt with.
Paternity might sometimes be challenged, by either spouse; but if so, the one challenging it must overcome the presumption of paternity that exists even for invalid and annulled marriages. This can sometimes be done, but strong, persuasive evidence is needed.
Finally, note that there is no 6 month waiting period for annulments as with most divorces. Once the judge approves the annulment petition, it immediately goes into effect. The process itself might take weeks or even month, but annulments can happen very quickly and they will greatly change the lifestyle of the spouses. Thus, before one files for an annulment, he or she should understand the basics of how the process works and be ready for a quick adjustment of his/her lifestyle, residence, means of economic support, and other important life issues.
Contact Us Today For Help
At San Diego Divorce Attorney, we have the legal expertise and depth of experience in handling California annulment cases to guide you through the process from beginning to end.
We can help you figure out if your "marriage" qualifies for an annulment or not under California law. And if so, and if you choose to pursue an annulment, we can give you top-tier legal advice and representation every step of the way.
For a free legal consultation concerning a possible annulment in San Diego or throughout Southern California, feel free to contact us today by calling 858-529-5150.