Why would someone
want to get an annulment vs. a divorce?
- If you are married an annulment sounds like a great option because the result of an annulment is that it’s like the marriage never happened. So if you are against divorce for religious reasons, if you get an annulment, you were never married making it impossible for you to get a divorce. In other words, the marriage becomes void.
- If you file for Divorce, you have to deal with the six months and a day cooling off period before your divorce can be final. For an annulment there is no such waiting period before your marriage is declared void.
- It may be possible in an Annulment action to prevent the other party from seeking support orders, division of property, attorney’s fees, etc.
- Unlike Divorce, there is no statutory residency requirement.
- Unlike Divorce, you don’t need to get consent from the opposing party or enter their default.
How can I get an
Annulment in California?
The first step in getting an Annulment in California is
finding particular grounds for the annulment otherwise you will have to file a
petition for dissolution or legal separation.
The grounds for an Annulment in California are as follows:
- · Void Marriages (Void from the very beginning)
o
Incest
(California Family Code § 2200, “Marriages between parents and children, ancestors
and descendants of every degree, and between brothers and sisters of the half
as well as the whole blood, and between uncles and nieces or aunts and nephews,
are incestuous, and void from the beginning, whether the relationship is legitimate
or illegitimate.”) (emphasis added)
o
Bigamy
(California Family Code § 2201, “A subsequent marriage contracted by a person
during the life of a former husband or wife of the person, with a person other
than the former husband or wife, is illegal and void from the beginning…)
(emphasis added)
- · Voidable Marriages (this marriage is voidable at the option of one of the parties)
o
Minority (California
Family Code § 2210, “The party who commences the proceeding or on whose behalf
the proceeding is commenced was without the capability of consenting to the
marriage.”) This means that the minor
and the spouse did not get the proper consents before getting married. There are exceptions to this rule.
o
Unsound
Mind (California Family Code § 2210, “Either party was of unsound mind,
unless the party of unsound mind, after coming to reason, freely cohabited with
the other as husband and wife.”) So if
the person claiming unsound mind figures out what has happened then decides to
cohabit with the spouse, the marriage is no longer voidable.
o
Fraud (California
Family Code § 2210, “The consent of either party was obtained by fraud, unless
the party whose consent was obtained by fraud afterwards, with full knowledge
of the facts constituting the fraud, freely cohabited with the other as husband
or wife.”) Fraud vitiates consent.
o
Force (California
Family Code § 2210) This is pretty
straight forward. If someone is forced
to get married there is no consent.
There is some case law that states that threats may be sufficient if
they took away a parties ability to consent to the marriage.
o
Physical
Incapacity (California Family Code § 2210, “Either party was, at the time
of marriage, physically incapable of entering into the marriage state, and that
incapacity continues, and appears to be incurable.”
Problem with an
Annulment in California is a Problem of Proof
As you can see in the above lists of void and voidable marriages
and annulment is available as a remedy in limited situations. I don’t think that being drunk in Las Vegas
can vitiate the consent required. (Although,
this might be worth doing some research on in another blog post.) The problem of proof in these situations
remains. Are you able to prove with accurate
facts to the court that you have grounds for an annulment? This is why annulment actions tend to be
highly contested and more expensive because there is a premium on proving for
example, unsound mind, or fraud. There
is a lot at stake as well because the responding party may lose their ability
to receive support in some cases.
If
you need assistance with your annulment case or any family law or divorce
matter please visit my website at www.lawofficeofbarrydwitt.com
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