Annulment – An Alternative To Divorce

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmMarriage annulment is a fairly misunderstood concept owing to the inaccurate projection of its legality by the popular religion and culture. Both annulment and divorce can be considered somewhat similar in their basic underlying principle of determining the status of wedlock. However, the major distinguishing factor that separates an annulment from a divorce is the implication of the marital status post a verdict in the court of law in the two cases.

What is the difference between a divorce and an annulment?

A divorce or a legal separation marks the end of a valid relationship and implies that the couple is no longer viewed by the court as man and wife. On the other hand, an annulment, colloquially termed as nullity of domestic partnership or marriage, is when the court declares the domestic partnership or marriage never really existed in the first place. With a verdict of annulment, it is assumed that the marriage never really happened as it was not valid or legal to begin with.

What are the grounds for filing for an annulment?

  • A marriage is never considered valid by the Californian state law, if the two parties involved are related by blood.
  • Another situation wherein a marriage stands illegal or invalid is when one of the partners is already in an existing registered wedlock with someone else. The marriage is then termed as bigamous.
  • A person who was below the acceptable age of 18 years at the time of his/her marriage can also file for an annulment of the same.
  • Another situation which is somewhat similar to bigamy can be distinguished on the basis of the fact that a spouse, who was already married to someone else, gets into another wedlock on the premise that the former partner has been absent and assumed dead for the past five years.
  • If either of the partners has an unsound mind that prohibits them from understanding the true implication and obligations of a marriage, their spouse can request an annulment.
  • An annulment can also be requested in a situation where a marriage was a result of fraud. For example, if an individual deceives his partner into wedlock only for obtaining a green card, the marriage will be considered fraudulent and invalid.
  • In cases where a partner was forcefully made to consent for a marriage, an individual can file a petition for an annulment.
  • Finally, if one of the partners was physically incapacitated at the time of marriage which rendered him/her unable to consummate the relationship, and the incapacity continues to stay incurable, the healthy partner has the right to file for annulment.

In order to obtain an annulment, it is mandatory for an individual to be able to prove at least one of the aforementioned reasons, with authentic evidential proof in the court of law.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Defining Annulment Legally

Posted by: Gerald Maggio

Top Orange County divorce lawyers; The Maggio Law FirmTwo legal methods dissolve a marriage: divorce and annulment. An annulment differs from a divorce in that when a couple annuls a marriage, the marriage never happened.

Grounds for an annulment vary by jurisdiction, but they may include: concealment, fraud, inability (or refusal) to engage in sexual relations or serious misunderstanding.

In California, a marriage is never considered legal if it is bigamous, with one partner already being married to someone else, or incestuous, when the parties are close blood relatives.

A case of concealment may involve a spouse hiding a prior criminal record, a drug addiction or a sexually transmitted disease. Fraud could involve misrepresenting an unmarried status or failing to disclose an inability to have children. Misunderstanding may revolve around each person’s idea of a lifestyle or the desire to have children.

The most famous contemporary example of an annulment is the January 4, 2004 marriage of Britney Spears to Jason Alexander in Las Vegas, Nevada. Spears filed for annulment on January 5, 2014, citing a lack of understanding of her actions — the couple did not know what one other liked, whether they wanted children or where they wanted to live. Spears and Alexander were granted an annulment within two hours, with the court stating that their marriage was not legally valid.

In California, obtaining an annulment does not depend on how long you have been married or in a domestic partnership. Filing for an annulment does, however, have a deadline that depends on the reason why you filed. If you miss it, further action is barred.

After an annulment, the former members of the relationship may not have other rights/obligations that divorced or legally separating couples may have. For example, if you have children and get an annulment, the court legally presumes that they do not exist. A judge must establish paternity. Then, the judge may make orders relating to visitation, custody and child support.

Annulments also affect community property laws in California. Those laws may not be used to divide debt or property accumulated while married or in a domestic partnership. The couple does not have the right to spousal or partner support or the right to receive any other benefits.

There is an exception to this situation: the putative spouse doctrine. The doctrine applies to a partner who reasonably believes the parties are married. There must be evidence offered to the court showing a belief that the usual formalities were completed. An example would be if the papers for a registered domestic partnership (RDP) were completed, but not mailed.

In California, an annulment may be referred to as a nullity of domestic partnership or nullity of marriage. Other marriages or domestic partnerships may be nullified if a filing party is under the age of 18 years old, if either spouse is already legally married or in a registered domestic partnership, if either party is of unsound mind, if either spouse married/registered due to fraud, if one of the parties agreed to marry as a result of force, or if one party to a union was physically incapable of consummating the marriage and that disability is deemed permanent.

Each reason for annulment requires those requesting such legal relief to prove the details involved in their request. In other words, it must be proven to the court that at least one of the possible reasons for filing for an annulment is true. Proving that at least one reason for requesting an annulment may be difficult. For this reason, it is wise to consult with an experienced divorce attorney.

What Is a “Legal Separation” and Should I File for It Instead of Divorce? What About An Annulment?

Posted by: Gerald A. Maggio, Esq.

what is legal separation, orange county divorce attorney, maggio family lawLegal separation is much like filing for divorce, in that you can obtain many of the same orders regarding custody, division of property, and support.  However, there is one key difference:  at the end of a legal separation case, you are still legally married to your spouse.

In situations where a party wants to obtain orders for child custody, visitation, and/or other issues but has not lived in the same county for the past 3 months or in California for the past 6 months to meet the time requirements for filing for divorce, that party can file for Legal Separation and amend his or her Petition to a divorce after 6 months have passed.

Legal Separation is also appropriate for some parties for religious and/or insurance coverage issues. Medical insurance companies who had previously insured a spouse under the other spouse’s medical insurance during the marriage generally terminate such coverage options when a divorce is finalized. Therefore, for spouses who would have difficulty in obtaining their own medical insurance coverage after termination of their marriage due to pre-existing medical conditions, a legal separation can make sense because it enables such medical insurance coverage to continue. The Court can make orders relating to child custody, visitation, child and spousal support and divide property in a legal separation case, but the parties otherwise remain married to each other.

Unless your circumstances fit one of those circumstances above, you should consider divorce instead of legal separation because you will still be married at the end of a legal separation case and if you later decide to divorce, you will have to file a new case for divorce.

What About An Annulment?  In order to qualify for an annulment instead of obtaining a divorce, the party seeking an annulment must be able to prove that the parties’ marriage was “void” (i.e. an incestuous marriage or where one of the parties was still legally married to another individual at the same time) or “voidable (where the party seeking annulment was under 18 years of age at the time of marriage or that the marriage was entered into based upon fraudulent representations, force, or mental and/or physical incapacity). It is generally substantially more difficult to obtain an annulment than a divorce.

For more information or to schedule a consultation, please contact The Maggio Law Firm at 949-553-0304 and at www.maggiolawfirm.com.

Annulling a Marriage May Be the Best Choice in Orange County Cases

Posted by: Gerald Maggio

Top Orange County divorce attorneys; The Maggio Law Firm

There are certain circumstances where it is best to annul a marriage. This is a situation that needs to be discussed with an Orange County divorce attorney.

Many people have heard the term annulment but aren’t sure precisely what it means when dealing with a marriage. Simply put, an annulment cancels a marriage, making it like it never happened in the first place. “Keep in mind that not everyone may qualify for an annulment. They must meet certain requirements referred to as a declaration of nullity,” explained Gerald A. Maggio of The Maggio Law Firm in Irvine, California.

Why not just get a divorce? While this is possible, it is not recommended in some instances. Generally speaking, there are two ways to cancel out a marriage. The most common way, divorce, happens when two adults can’t reconcile their differences. A divorce creates a record for everyone to see.
“The second way to bail out of a marriage is an annulment, meant for circumstances where the marriage was accidental or was entered into under false pretenses. Once the annulment is granted, there is no record of the marriage ever happening,” Maggio added.

One of the leading benefits of an annulment is that it is much faster than a divorce, with a waiting period of 20 days. This may be waived if both parties agree to do so. Generally speaking, if the couple involved in the annulment proceedings is amicable and agree to go this route and they qualify, then an annulment is usually the best way to proceed.

This is where things may get a bit difficult. “To qualify for an annulment, a reason must be given as to why the marriage should be null and void. A reason for annulment is referred to as a diriment impediment to the marriage,” outlined Maggio. These impediments may include not intending to remain faithful to the spouse when they get married, abducting a person to make them get married, one partner has been deceived by the other to get their consent (if the partner had known about the deceit they would not have gotten married) and insanity.

Other impediments are that the couple killed the spouse of one of them to be free to marry, the couple committed adultery, and one of couple killed the spouse of one of them to be free to marry, and not living up to the requirement of common law for marriages. “These are serious impediments and in all instances, these situations must be discussed with a skilled Orange County divorce attorney in order to start the process to have the marriage considered null and void,” said Gerald A. Maggio of The Maggio Law Firm in Irvine, California.

Gerald A. Maggio is senior partner of The Maggio Law Firm, Inc., an Orange County and Riverside Divorce and Family Law firm headquartered in Irvine, California. The Maggio Law Firm is experienced in all aspects of divorce and family law matters, including child custody, child support, spousal support, complicated high asset marital property cases, and domestic partnerships.

For more information or to schedule a consultation with Orange County divorce lawyer Gerald Maggio, contact The Maggio Law Firm by calling (949) 553-0304 or visiting http://www.maggiolawfirm.com/.

What is Annulment, and When is it More Appropriate to Seek Instead of Divorce?

Posted by: Gerald Maggio

Top Orange County divorce attorneys; The Maggio Law Firm

Petitioning for a judgment of nullity (instead of divorce) is appropriate where the validity of the marriage is in doubt, i.e. that no valid marriage ever occurred from its inception because it was void or voidable. In other words, whereas a divorce matter seeks to terminate marital status, a nullity action seeks to determine whether any such status ever existed.

A marriage may be invalid from its inception either because of problems in statutory formalization procedures (ordinarily marriage license, solemnization and authentication; or because of other legal problems that, notwithstanding proper formalization, render the marriage void or voidable (incestuous, bigamy, induced by fraud or force, party under age or consent, etc.)

An alleged marriage or domestic partnership may generally be adjudged a nullity as “void” pursuant to California Family Code Sections 2200 or 2201 or if otherwise invalid from its inception as follows:

  1. Incest: A marriage or domestic partnership between parents and children, ancestors and descendants of every degree, brothers and sisters (of the half or whole blood) or uncles and nieces or aunts and nephews is incestuous and void from the beginning, whether the relationship is legitimate or illegitimate.
  2. Bigamy: A subsequent marriage or domestic partnership is illegal and void from the beginning if either party has a spouse or domestic partner still living unless the former marriage/domestic partnership was dissolved or adjudged a nullity before the date of the subsequent marriage/domestic partnership.
  3. Marriage/Domestic Partnership not lawfully contracted.
  4. An alleged marriage or domestic partnership may be adjudged a nullity as “voidable” pursuant to California Family Code Section 2210 as follows:
  5. Minority of a Party: The party who commences the nullity proceeding (on on whose behalf it is commenced) was under the age of lawful consent (under age 18) and did not obtain the requisite parental/court consent unless, after attaining age 18, the party “freely cohabited with the other as husband and wife.”
  6. Prior Existing Marriage or Domestic Partnership: Either party was legally married to another or a member of another domestic partnership.
  7. Unsound Mind: Either party was of “unsound mind” (unable to understand the subject matter or the marriage/domestic partnership contract and obligations incident thereto) unless, “after coming to reason,” he or she “freely cohabited with the other as husband and wife.”
  8. Force: Wither party’s consent to the marriage or domestic partnership was “obtained by force,” unless the coerced party thereafter “freely cohabited with the other” as husband and wife.
  9. Physical Incapacity: Either party was “physically incapable” of entering into the marriage state (unable to engage in normal copulation) and such incapacity continues and appears to be “incurable”
  10. Fraud: Either party’s consent to the marriage or domestic partnership was obtained by “fraud,” unless the defrauded party thereafter, and with full knowledge of the facts constituting the fraud, “freely cohabited with the other” as husband and wife (the alleged intentional fraud must go to the very essence of the marriage or domestic partnership, meaning that such misrepresentation led the defrauded party to agree to enter into the marriage or domestic partnership).

For more information or to schedule a consultation, contact Orange County divorce attorney Gerald Maggio of The Maggio Law Firm, by visiting www.maggiolawfirm.com or calling (949) 553-0304.

 
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