Sometimes a divorce isn’t the best solution to a marriage that isn’t working out. If you meet certain qualifications you may be able to petition for an annulment. An annulment is similar to a divorce – in that it terminates the marriage – but is fundamentally different, as well. After a divorce is granted the marriage is still acknowledged by the state. After an annulment is granted, however, the marriage is no longer acknowledged. Rather, it is as if the marriage never happened at all.
How to Annul a Marriage in California
In California, you are permitted to petition to have a marriage annulled if you meet certain criteria. Marriages that are incestuous or bigamous are never legal. If you learn that your spouse is blood related or married to another person you must immediately petition the court for an annulment. If you meet any one of the following grounds you may petition to have your marriage annulled in California:
- Pre-existing marriage: one spouse was already legally married at the time of the marriage. Note, this is distinguishable from bigamy, which is never legal. This most often arises when one spouse was married earlier in life but has not spoken to or heard from their prior spouse in over 5 years or believes them to be deceased.
- Fraud: perpetrating a fraud to obtain another’s consent to marriage or perpetrating a fraud to deceive the state into believing the grounds for marriage are legitimate. Green card marriages are an oft-cited example of fraud. The fraud must go “to the essence” of the marriage to be grounds for annulment.
- Age: both spouses must be at least 18 years of age at the time of the marriage. If a spouse was not of legal age they may request an annulment.
- Force: forcing a person to enter a marriage against their will.
- Unsound Mind: a mental condition – either temporary or permanent – prohibiting a spouse to understand the full effect of the marriage. Note, the grounds for unsound mind can be either temporary or permanent, meaning that something as fleeting as extreme intoxication or as significant as dementia could be sufficient.
- Physical Incapacity: an incurable physical condition prohibiting one or both spouses from engaging in fruitful sexual relations. Examples could include erectile dysfunction, impotency, or an undisclosed hysterectomy.
The person seeking the annulment has the burden of proving that the grounds for annulment existed at the time the marriage was entered. For example, if a spouse was only 16 at the time he or she was married, they would be required to offer evidence to that effect, such as a birth certificate. If a spouse were to seek an annulment on the grounds of physical incapacity he or she may be required to provide proof including lab reports, medical records, and/or statements from a physician. Failure to provide evidence supporting the grounds for annulment will likely result in a denial of the request.
California Annulment Timeline
In most cases, California only provides a small window in which a spouse may petition the court of an annulment of a marriage. The specific statute of limitation depends on the grounds for which the spouse is seeking the annulment. A California spouse may seek an annulment on the grounds of:
- Pre-existing marriage at any time the married spouse is alive;
- Fraud within four years of discovering the fraud;
- Age within four years of turning 18;
- Force within four years of the date of marriage;
- Unsound mind at any time before death*; and
- Physical incapacity within four years of the date of marriage.
*A family member or advocate of spouse suffering from a mental condition which prohibited them from understanding the full effect of the marriage may petition the court for an annulment on their behalf.
If a spouse who wants to get an annulment of marriage fails to petition the court within the acceptable time frame they must seek alternative grounds for dissolution of the marriage, such as divorce.
How Do I Get My Marriage Annulled in California?
Now that you understand the reasons for which you may seek an annulment and the timeframe in which you must petition the court, you may be wondering what the process itself looks like. Requesting an annulment of marriage in California is a fairly straightforward legal process, but can involve complex legal theories. While this general overview presents the steps required to petition the court for an annulment, it is important to understand that it is a legal proceeding that would benefit from the assistance of an experienced California annulment attorney.
- Complete the petition and declaration for annulment. California spouses seeking a dissolution of marriage must complete and sign Form FL-100. Check the box for “nullify.” The declaration for annulment will require information about the marriage – such as the names of the spouses and the date it was entered, the grounds you are basing your petition on, as well as any other information that will be helpful in reviewing the petition.
- Complete additional paperwork. The most common form that is required when petitioning for an annulment – in addition to the FL-100 – is the Declaration Under Uniform Custody Jurisdiction and Enforcement Act. If you have children who are a result of the marriage you’re seeking to have annulled you’ll be required to stipulate to custody, visitation, and financial support arrangements.
- Service. You’ll need to notify your spouse of the petition to annul the marriage. The process for serving your spouse is similar to that for divorce. You must either have the papers personally delivered by someone over the age of 18 to your spouse or have them left at their home or office and mail a copy to them. You can serve the papers yourself, have a family member deliver them, or hire local law enforcement or a professional service. If you choose to enlist the assistance of an experienced California annulment attorney, he or she will ensure service is proper.
- Visit the Clerk. To officially file your petition for annulment in California you’ll need to take the FL-100 and any supporting documents to your local Clerk. There, you’ll be required to pay the associated filing fees.
- Go to your hearing. You’ll receive correspondence from the Clerk once your petition for annulment is filed notifying you of your hearing date. The hearing will be scheduled at least 30 days after the petition is filed. The hearing gives your spouse an opportunity to object to the petition and for the court to ask any questions they may have.
What Happens After an Annulment in California?
If the court denied your petition for an annulment you have two options:
- Amend the petition to fix the information causing your denial; or
- Amend the form to petition for a divorce.
If the court approved your annulment your marriage is no longer legally recognized by the state. Rather, it is as if you were never married to your former spouse in the first place and your state record(s) will not reflect the marriage. It is important to understand what the annulment means for you, your former spouse, and any children you may have together.
California has a strong presumption of paternity which helps to ease the transition from married-couple-with-child to single parenthood. If a man fathers a child in a marriage that is later annulled, paternity is generally carried outside of the marriage. It may, however, be wise to have the former spouse legally declared as the father of the child(ren). Visitation, custody, and support agreements often hinge on the paternity of a former spouse.
California is a community property state, meaning that any property assumed during the marriage is considered the property of both spouses. Since an annulment voids the marriage, the spouses will be required to take individual title and ownership of any community property. Former spouses who were named as beneficiaries for spousal survivor benefits or spousal support will forfeit those rights when the marriage is annulled.
If you are seeking an annulment you should contact an experienced annulment attorney to learn about your legal rights and obligations. The process can become complicated, and quickly, especially if one spouse contests the petition. Having a knowledgeable attorney by your side can make the process less stressful and easier to handle.
Berenji & Associates
8383 Wilshire Blvd #443
Beverly HIlls, CA 90211