Should I ask for an Annulment?

Experienced San Francisco Bay Area attorneys will inform clients about the option for an Annulment when they want to separate from their spouse.  Is Annulment right for you? This post covers some of the most common questions about Annulment in California.

What is an Annulment?

In California, an Annulment or “nullity” is when the Court determines that the marriage is not legally valid.   A marriage can be annulled or voided in cases of incest, bigamy, unsound mind, fraud, force, and physical incapacity.

What is the difference between Annulment and Divorce?

In the San Francisco Bay Area, a dissolution or Divorce is when the Court terminates a valid marriage on grounds arising after the marriage.  In contrast, an Annulment is when the Court terminates a marriage on the grounds that there was never a valid or legal marriage. In other words, a divorce action seeks to terminate marital status on grounds that occurred during the marriage, while a nullity action seeks to inquire whether any such status ever existed.

What are some advantages of asking the Court for an Annulment?

There are some advantages of pursing an Annulment. 

1.     First, there is no 6-month waiting period from service of process (or the respondent’s appearance).  

2.     Second, there is a possibility to restore rights that were lost as a result of the marriage.

3.     Third, if the responding party is not a putative spouse it may be possible to prevent that party from obtaining orders (for example, division of property, support, attorney fees and costs) in a nullity action that he or she could obtain in a dissolution action.

What are some of the disadvantages of asking the Court for an Annulment?

1.     First, proving the grounds for annulment may be more complex, difficult and costly than a divorce.

2.     Second, California community property laws that protect married couples will no longer be in place if the marriage is annulled. 

3.     Last, neither party can receive spousal support or survivorship benefits, like inheritances and retirement interests, from the other.

 

 

If you are considering an Annulment and have more questions, contact an experienced Bay Area family law attorney. 

I feel like my marriage was a fraud, can I get an Annulment?

Maybe. Often clients are surprised at how specific the situations are where the Court will grant an annulment. Here are some common factual circumstances where a marriage can be annulled:  (1) the couple is related by blood, (2) one spouse was already married before entering into the second marriage, (3) one spouse was not eighteen years old at the time of the marriage, (4) either spouse perpetrated a fraud to obtain the other party's consent to marriage, (5) either spouse has a mental condition that prevents them from understanding and appreciating the nature and duties of marriage—including severe intoxication.

We did not record our marriage certificate, can I get an Annulment?

No. One of the most common questions is whether failure to record a marriage certificate is grounds for an annulment.  Unfortunately, in California the failure to record a certificate of registration of a marriage does not invalidate an otherwise valid marriage. Marriage of Cantarella(2011) 191 CA4th 916, 925.

My spouse only married me to get a Visa, can I get an Annulment?

When one spouse persuades the other to marry because of a secret desire to remain in the United States.  A judgment of nullity based on fraud is also warranted where one party's motive in entering the marriage was solely to obtain a green card (to acquire U.S. residency status) and he or she never intended to engage in sexual relations with the other or to meet marital duties.

What are examples of fraud that constitute nullity or annulment?

California courts have found the following circumstances as evidence of fraud: (1) if either party hides the knowledge of infertility or sterility, (2) the female partner  hides an existing pregnancy, (3)  concealed intent not to live with the other spouse or (4) concealment of the intent to not to engage in sexual relations with the other spouse, (5) or concealment of the intent to not to have children despite a promise to the contrary.

A recent example where a finding of fraud was supported was in Marriage of Ramirez where a spouse’s intent to ignore his marital obligation of fidelity supported a finding of fraud when the husband intended to continue ongoing simultaneous sexual relationships with both his wife and her sister at time of marriage.

However, not every unhappy situation is a fraud.  For example, an allegation that “the husband turned out to be, in the eyes of his wife, a lazy, unshaven disappointment with a drinking problem” was not enough to justify a judgment of nullity.  Additionally, a spouse’s premarital misrepresentation of his financial status was not enough to grant an annulment based on fraud. 

If you are thinking about asking for an Annulment on the basis of fraud, contact a family law attorney today, you can reach me at amanda@gordonfamilylaw.com