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annulment 2017-10-12T21:09:55+00:00

Annulment

Filing for an annulment is a request for the Court to consider that your marriage was invalid or void. This is different from a divorce which recognizes that there was a marriage, which has ended. An annulment is asking that the marriage is erased.

Grounds for Annulment:

A petition and summons would be filed just as in a dissolution listed above. However, unlike “no-fault” divorce, the party seeking the annulment must prove one of the following by a preponderance of the evidence:

Void marriage based on:

  • Incest
  • Bigamy

OR

Voidable marriage based on:

  • Petitioner’s age at the time of marriage or domestic partnership
  • Prior existing marriage or domestic partnership
  • Unsound mind
  • Fraud
  • Force
  • Physical incapacity

A void marriage is one that is not recognized. A voidable marriage is one that was recognized as valid at the time, but upon showing one of the criteria above it will no longer be considered a valid marriage. Regardless of whether it is “void” or “voidable,” if the petition is granted then the result is the same: annulment. It is common in many divorce actions that one spouse claims the other committed “fraud” or one of the other basis listed for annulment. However, the basis for an annulment usually deals with ignorance of “fraud” or other grounds that was an inducement or cause resulting in marriage and was discovered after the fact, not fraud in general. If the Petitioner cannot prove fault as listed above then they will need to proceed with a dissolution action.

Custody Visitation & Support:

Child custody and visitation, child support, and ex parte requests are handled in the same way in an annulment as in a regular dissolution action. The Court can award spousal support to the putative spouse who is seeking the annulment. Inversely, the putative spouse is insulated from paying spousal support if their request for annulment is granted. A putative spouse is one who had a good faith belief or understanding at the time of the marriage that it was valid, even though it is void or voidable. The waiting period, residency; Unlike a divorce, there is no waiting period to attain an annulment. There is no residency period.

Property:

There is no community property, but if the Court finds that either or both believed in good faith that it was a valid marriage then the court may consider the property to be “quasi-community,” which means the Court will divide it as if it were community property, but only at the request of the putative spouse, the one who mistakenly but in good faith believed that they were in a legitimate marriage.

Statute of Limitations:

There are statutory limitation on when you can file for a nullity depending on the grounds:

” A proceeding to obtain a judgment of nullity of marriage, for causes set forth in Section 2210, must be commenced within the periods and by the parties, as follows:

(a) For causes mentioned in subdivision (a) of Section 2210, by any of the following:

  1. The party to the marriage who was married under the age of legal consent, within four years after arriving at the age of consent.
  2. A parent, guardian, conservator, or other person having charge of the minor, at any time before the married minor has arrived at the age of legal consent.

(b) For causes mentioned in subdivision (b) of Section 2210, by either of the following:

  1. Either party during the life of the other.
  2. The former spouse.

(c) For causes mentioned in subdivision (c) of Section 2210, by the party injured, or by a relative or conservator of the party of unsound mind, at any time before the death of either party.

(d) For causes mentioned in subdivision (d) of Section 2210, by the party whose consent was obtained by fraud, within four years after the discovery of the facts constituting the fraud.

(e) For causes mentioned in subdivision (e) of Section 2210, by the party whose consent was obtained by force, within four years after the marriage.

(f) For causes mentioned in subdivision (f) of Section 2210, by the injured party, within four years after the marriage.”

California Family Code Section 2211

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