Annulment vs. Divorce in California

Most people are familiar with the divorce process. However, there’s another way a marriage can legally be ended in California — by an annulment. While the result is the same, in that the marital ties are severed, the legal effects of an annulment vs. divorce are very different.

Although both a divorce and an annulment can dissolve a marriage, an annulment effectively makes it as if it never existed. Each legal process has various pros and cons that should be carefully considered based on the specific circumstances of your situation.

What is a Marriage Annulment?

A marriage or domestic partnership can be annulled in California if a court determines there was a reason it was never legally valid. Once a marriage is annulled, it is as if it did not occur. It’s important to understand that a civil annulment granted by a court is not the same as a religious annulment. Religions often have their own specific requirements for annulments.

There are two reasons a marriage would be void from the beginning — in cases involving bigamy or in which the spouses are close blood relations. If two blood relatives were to marry, the court would simply void the marriage. The marriage would also be null if one of the spouses actually had another spouse at the time the marriage took place. If one is a minor, annulment is possible, and so is marriage based on force, threats, and fraud. A green card marriage would be an example of fraud.

Specifically, a marriage or domestic partnership can also be voidable and “adjudged a nullity” under the California Family Code based on one of the following criteria:

• The party seeking to annul the marriage was under 18 years of age when it was entered into — This refers to a situation in which proper parental and court consent was not obtained before the marriage and one or both spouses was not of legal age on the date of the marriage ceremony. If the minor misrepresented their age at the time of the marriage, courts are usually forgiving in this area and grant the minor an annulment provided that the request is brought within the statutory period of time.
• Either spouse was legally married to another person who was absent for five or more years and thought to be deceased — A marriage may be annulled on the grounds of bigamy. However, there is an exception if the first spouse was missing and could not be located for a period of five or more years. In these instances, a request for an annulment can be filed at any time during the life of the other spouse who was not still married.
• One of the parties had an “unsound mind” and didn’t fully understand the nature and obligations of marriage — This means that one of both of the spouses did not have the mental capacity to understand the nature of the marital proceedings at the time of the marriage ceremony. Examples would be mental illness or intoxication at the time of the marriage. Since the key facts in such a case pertain to the circumstances at the time of the marriage, expert testimony, witnesses and other reliable evidence are essential to prove a voidable marriage.
• One of the spouses was fraudulently induced into the marriage — The fraud must be substantive and go to the “essence” of the marriage. For example, one spouse deceived the other in order to remain in the United States. The aggrieved spouse can bring an action to void or nullify a marriage within four years of discovery of the fraud.
• The marriage was entered into as a result of force on one of the parties — If violence, coercion, or threats were used by one spouse to induce or force the other into marriage, the marriage may be annulled. But an exception may apply if the spouses were freely cohabitating years before the marriage. Instances of extortion, blackmail, and threats against family or one’s vocation may also constitute sufficient facts to void a marriage.
• Incurable physical incapacity — This usually refers to impotency, preventing the couple from engaging in marital relations. Exceptions would apply in situations where a spouse was disabled before the marriage took place, and the condition was known to the potential spouse prior to the marriage.

Not all marriages are suitable for annulment. Importantly, the party seeking to end the marriage by an annulment must be able to prove the grounds on which it is based, which can often be challenging — and potentially result in lengthy litigation. In contrast, a divorce in California can be obtained based on irreconcilable differences, and neither party needs to prove fault.

You should carefully consider your specific facts and circumstances, as well as the grounds on which you’re seeking to dissolve your marriage, to determine what is best for your situation when comparing an annulment vs. divorce.

Statutes of Limitations for Annulments

Unlike in divorce cases, there are statutes of limitations associated with obtaining an annulment. Although a divorce can be commenced at any point during the marriage, an annulment petition must be filed within a certain amount of time, depending on the grounds under which you seek to have the marriage invalidated.

While some of the grounds have a four-year statute of limitation associated with obtaining an annulment, it’s important to understand when it begins running.

The grounds of force and incurable physical incapacity are time barred by a four-year statute of limitations that begins running from the date of the marriage. If one of the parties was under 18 years of age, a four-year statute of limitations is also applied, but commences on the date the underage party turns 18. In cases involving fraud, the spouse seeking the annulment has four years to file from the date the deception was discovered.

There are no time frames for filing for an annulment based on the ground of “unsound mind” — it can be done at any time prior to the death of the party with the mental incapacity. An existing prior marriage can also be annulled at any time during which both spouses in the current marriage are still living.

The California Annulment Process

The annulment process is similar to that involved in divorce. In order to obtain an annulment in California, a spouse must first file a “Petition for Annulment” with the court in the appropriate county. It is important to keep in mind the applicable time frame to commence an action for an annulment, as discussed above.

An annulment petition includes background information about the:

• Spouses’ marriage
• Reason(s) for the annulment
• Proposed terms for the annulment

In some cases, the court may be able to grant a divorce if the requirements for granting an annulment have not been met.

After filing a Petition for Annulment with the appropriate court, the filing spouse has 30 days from the date of filing to notify the other spouse of the petition and formally serve him or her. The other spouse then has 30 days from the time of receipt to file an answer or response to the petition. Assuming the annulment is uncontested, a court hearing will be set and the judge will issue an annulment decree. A marriage is not annulled until the decree has been entered by the court.

If the non-aggrieved spouse objects to the annulment for reasons such as property division or spousal support, the issues can become more complicated. In these instances, a hearing or trial may be held to address whether there is a solid legal basis to annul the marriage.

Annulment vs. Divorce: The Pros and Cons

Since an annulment has the effect of making it as though the marriage never took place, it’s important to consider whether annulling your marriage could have specific consequences for your situation. Divorced spouses have certain rights that those who have their marriage annulled do not, since an annulment determines a marriage was never valid from the outset.

With limited exceptions, spousal maintenance, community property rights, pension benefits, and other legal rights of divorced spouses are generally not applicable when a marriage is annulled. Depending on the facts of your case, this may be an advantage to obtaining an annulment, rather than a divorce. In addition, any prenup executed in contemplation of divorce could be invalidated.

The overall costs associated with ending a marriage by annulment versus divorce should also be considered. Getting an annulment can be a cost-effective way to end a marriage since there aren’t as many legal issues that must be resolved as in a divorce. But if the grounds on which you’re seeking an annulment would be difficult to prove or are contested, litigation costs, investigator fees, and expert witness expenses can quickly add up.

Since there’s no proof of fault required, a divorce based on irreconcilable differences may be more economical than going through the annulment process in certain instances — particularly if you and your spouse have already agreed on child custody arrangements, support payments, and property distribution.

Significantly, the annulment process doesn’t have the same six-month minimum residency requirement or waiting period that must be satisfied to get a divorce. Unlike in a divorce, a party can terminate their marriage by an annulment immediately.

The Effects of an Annulment on Paternity

Depending on the specific facts of your situation, an annulment could potentially raise issues of paternity. In California there is a strong presumption of paternity even when a marriage is annulled. Under the Uniform Parentage Act, paternity is presumed of children born during a marriage or within 300 days of it being terminated by divorce or annulment.

Just as in a divorce case, child custody, visitation and support would need to be determined if a marriage is ended by an annulment.

Contact a Fresno Divorce and Family Law Attorney

The decision to end a marriage is never an easy one — whether by divorce or annulment. An experienced California divorce attorney can explain the legal consequences of each to help you determine whether seeking an annulment or going through the divorce process is the best option for your situation. The Law Offices of Rick D. Banks has more than 20 years of experience helping clients throughout Fresno and the surrounding area obtain their goals and move forward. To schedule a no obligation consultation, call (559)222-4891.