Articles Posted in Annulment

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Divorce, Annulment or Legal SeparationMarried couples who have chosen to part ways may wonder about their options. Most people are not aware of the differences between divorce, annulment, and legal separation.
An annulment is when a court says your marriage is not legally valid. Annulments are rare, and can only be granted by a judge. Unlike a divorce, an annulment treats the marriage as if it never occurred. A marriage is always considered invalid if it is incestuous or bigamous (marriage to more than one person). Marriages may also be annulled if the marriage occurred due to force or fraud, if one of the spouses is too young to marry or already married, or if there is physical or mental incapacity. Similar to a divorce, the judge presiding over the annulment may determine issues of child custody, child support, alimony, and division of assets.
Legal Separation
A legal separation is an agreement by a married couple to live separately. Typically, the simple act of living apart or agreeing to separate for a period of time is not enough for a legal separation; it requires the spouses to legally file for separation. A legal separation does not end the marriage, and you cannot marry someone else if you are legally separated. Couples that have a religious objection to divorce often choose legal separation. Other times couples choose legal separation because they have concerns about the availability of benefits, like insurance, for one spouse. However, some insurance policies will not cover a spouse following a legal separation. A legal separation allows couples that do not want to divorce to live apart and have a judge assist with the process. The judge can help decide issues like division of money and property, visitation, and child support.
A divorce is a dissolution of marriage, and officially ends the marriage. After you are divorced, you are considered single again. You may marry again if you would like. During the divorce proceedings, a judge can order child support, spousal support, custody, visitation, restraining orders, and division of property. Spouses may choose between two types of divorce: “no-fault” or “fault-based” divorce, depending on the laws of the state in which the petitioner resides. No-fault divorces allow a spouse to file for divorce without blaming the other spouse for the dissolution. The grounds for a no-fault divorce include irreconcilable differences, irremediable breakdown of the marriage, or loss of affection. In some states, spouses may also file for a fault-based divorce. A spouse may choose a fault-based divorce to avoid the required waiting period or to influence the judge when deciding child custody, child support, alimony and property division. The grounds for a fault-based divorce include adultery, abandonment, domestic violence, and substance abuse.
Deciding whether to obtain an annulment, legal separation, or divorce is a decision each divorcing couple needs to make based on their own circumstances. For example, California requires a married couple to live in the state for six months before they may file for divorce, so they may choose to legally separate until the six month period expires. An attorney will be able to provide the best advice, given your particular circumstances, and can advise you on the best option for you.

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Family Law - Annulment Small.jpgWhen 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.

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