Santa Rosa Family Lawyer Blog

When parties in Northern California are considering a divorce, sometimes they question whether they can get an "annulment". Under very specific and limited circumstances, parties can request a California court to declare their marriage null and void.

For the court to grant a judgment of nullity the must determine that the marriage was either void or voidable. Under the Family Code, a marriage is void from the beginning when the marriage involves either incest or when a marriage is entered into while either party is married to another person. In the later situation, the marriage is usually bigamous and void from the beginning.

A party who mistakenly believes their spouse to be deceased can have a marriage deemed void if for 5 successive years immediately preceding the marriage, the party's spouse had been absent and not known to the party to be living or at the time the marriage was entered into, the party's spouse was generally reputed or believed by the party to be dead.

Under the Family Code, when a marriage is void, it is void from the beginning, technically meaning that no marriage has occurred. However, this does not mean that a party should not obtain a judgment of nullity, because depending on the circumstances, a party may want a public record of their marital status. Furthermore, in specific circumstances, a party to a void marriage may be entitled to assert property and support rights as though the marriage had been valid and the parties may also address issues of custody, visitation, and child support in a nullity action.
On the other hand, a voidable marriage is valid until it is declared void and judicially declared a nullity. A marriage is voidable when a spouse was a minor and lacked the ability of consent; a spouse had an unsound mind at the time of marriage; consent was gained through fraud or force; or a spouse is physically incapable of entering into the marriage.
In situations of minority, a marriage is voidable if, at the time of the marriage, the petitioner was under age 18 and the requisite parental and court consents were not obtained. Nullity based on unsound mind occurs when either party is incapable of understanding the nature of the marriage contract and the duties and responsibilities it creates at the time of the marriage ceremony. Seeking an annulment on the basis of fraud will require the court to determine that the consent to enter into the marriage was obtained by false representations relating to a matter of substance that go to the very essence of the marital relation.

Making the decision to file for a divorce in California is very difficult and many people are overwhelmed with the process and the paperwork. There are complicated decisions about finances, dividing assets and debts, developing a parenting plan and so much more. Additionally, and often times just as important as the legal issues is the emotional turmoil many parties feel and a feeling of not knowing what to do.

When a person makes that difficult decision to file for divorce sometimes there are some initial questions such as "Where do I file?" and more importantly "Can I file for divorce in California?"

The later question should be answered first because in order to file for divorce in California, the state requires that you be a resident of California for at least six months and that you have been a resident of the county wherein you reside for at least three months. Depending on the specific circumstances of your matter even if you do not meet with the jurisdictional requirements for a divorce in California, you may be able to file for a legal separation, which can later be amended.
The question of "Where do I file?" is more easily answered. Filing for divorce in California requires the preparation of several documents and a filing fee. The required documents are a Petition for Dissolution of Marriage, a Summons and if the parties have children, an additional form called the Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act or "UCCJEA". In short, the UCCJEA is a uniform act that grants the court of the "home state" of a child exclusive jurisdiction for issues of child custody. All of these documents listed above must be completed and delivered to the clerk of the family law court, with two copies, and the required fees.
However, simply filing a Petition for Dissolution will not grant either party rights to child custody, child visitation, child support, spousal support or divide any property rights. A party seeking to have any of the above issues must file a motion with the California court specifically seeking the requested relief.
Another serious issue to consider is the numerous tactical issues that affect the timing of a person filing a California Petition for Dissolution. These can range from specific issues regarding a determination of child custody and the best interests of the children to issues of property control. For example, by filing a California Petition for Dissolution and serving the required documents on your spouse, there are financial restraining orders that prohibit your spouse from transferring property, encumbering property or changing beneficiary designations without your consent.

When a marriage or domestic partnership is being dissolved, the issue of spousal support or alimony is often a primary concern of the parties. In part, this is because marriage involves mutual obligations of respect, fidelity and support and this continues even through the dissolution process. The experienced family law attorneys at Beck Law will assist you in this very important determination, regardless of whether you are the spouse entitled to receive temporary spousal support or the party that may have the obligation to pay

Temporary Spousal Support

During the dissolution process a spouse may have the right to receive temporary spousal for the purpose of assisting that spouse balance their financial obligations. Often times, it is very important to obtaining a temporary spousal support order immediately so as to secure financial security to a spouse who was dependent on the income of the other party. In the situation of temporary spousal support its calculation is generally based upon the needs of the supported party and the ability of the supporting party to pay. Prior to a judgment for dissolution, temporary spousal support is calculated much like child support and uses a judicially recognized "guideline" calculated by a program.

How is Temporary Spousal Support Calculated?

To calculate temporary spousal support, the experienced attorneys at Beck Law, will determine the relative income of each party and calculate what guideline temporary spousal support may be. This is a complex process, which involves many specific calculations and consideration of applicable deductions and allocation of expenses between the parties. If not performed correctly, the calculation may result in a spouse receiving far less than what they may be entitled to receive or paying far more than they should.

Permanent Spousal Support

Permanent spousal support, or support that may be ordered after a judgment for dissolution has been entered, is calculated by a careful consideration of a long list of factors under Family Code section 4320. In particular these include the respective incomes of each spouse, the length of the marriage, ability of a party to pay, the standard of living during the marriage, the assets and debts of each party and whether there has been any domestic violence. Permanent spousal support is generally payable for duration of half the length of the marriage, except in cases of a marriage of a long duration, or over 10 years, where the court may reserve jurisdiction over the termination of spousal support.

How is Permanent Spousal Support Calculated?

When calculating permanent spousal support it is important to evaluate the specific factors of the Family Code and also to consider the unique facts applicable to your case. For example, will the supported spouse require any retraining or education, did the parties pay for one spouse to go to school and obtain additional professional skills, did the supported spouse previously have job skills and is that supported spousal maximizing their earning potential. When you are going through a dissolution that involves spousal support and permanent spousal support in particular it is important to have an experienced family law attorney because a negative result may not be modifiable and financially impact you for many years to come.