By Atty. Johnson Lazaro
What is better – a divorce or an annulment? This is a favorite question from callers. It’s akin to asking what’s tastier apple or orange. The answer depends on your situation and your goals. The therapist part of me would ask, can the marriage be saved? If so, hold off on the lawyer.
This article would only touch on the basics of divorce and annulment. A divorce or dissolution of marriage is the most common form of legal remedy available if the marriage cannot be saved. There are many grounds for divorce, but the most common is “irreconcilable differences.” This is the legal term. In simple terms, this means that you can’t stand to see your wife’s or husband’s face anymore.
In California, you can’t get divorced if neither of you has been a resident of the state for six months and a resident of the county where you will file for three months. Another reason why one file for divorce is to seek what’s called pendete lite orders or temporary orders. One may seek a restraining order against an abusive spouse or seek spousal support or child support. Once a divorce action is filed and served on the other party, automatic restraining orders are in place. This means that a spouse is prohibited from disposing property and changing insurance beneficiaries. A spouse would not be able to withdraw or sell the assets until there is a court order.
After six months, a California judge may sign the divorce papers signifying that you are again single and free to marry. But be careful. You don’t become single just because six months have passed. There are court papers to be filed and reviewed by the courts before a divorce judgment is final. During or even after divorce, the court may continue to make a wide range of orders. The court may order a division of property, child support, custody, and attorney’s fees.
A judgment of annulment or nullity of marriage, on the other hand, technically declares that no marriage ever occurred. It’s as if you never walked down the aisle and exchanged, “I dos.” Under the law, a marriage is void in cases of incest and bigamy. A marriage is voidable in cases of minority (someone gets married under the age of 18), presuming no parental consent. If a party wasn’t able to fully understand the nature of the marriage contract and the duties and responsibilities it creates, one could get an annulment based on having an “unsound mind.” The mental capacity of the party at the time of marriage would be examined.
Another ground for a nullity is fraud. If one’s consent to marry was obtained by fraud, that marriage may be annulled. The fraud must relate to a matter of substance and it must directly affect the purpose of the party deceived. This is getting in heavy in legal mumbo-jumbo. Just know that if you allege fraud, you must be prepared to show that you were tricked into marriage. You need to show compelling evidence. Other grounds for nullity are force and physical incapacity. Once an annulment is granted, you’re free to marry.
If it is ever possible to end a relationship amicably – do it. There are ways to part with civility and respect, and without incurring much expense. You can participate in mediation or you can informally create a settlement agreement. Believe it or not there are lawyers who specialize in peaceful divorces.
This article does not form an attorney-client relationship. It should not be relied upon as legal advice.
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