What is the difference between filing for an annulment and a divorce

Divorce, Legal Separation, Mediation

Invalid Marriage: Annulment

Filing for an annulment through the Courts means asking the Court to order the marriage null and void, as though the marriage never occurred.  Annulments are granted when a Court finds a marriage is invalid. 

In an annulment proceeding, the person wanting the annulment has to prove the marriage was null and void based on any of the following facts:

  1. FRAUD: Fraudulent marriages are basically marriages based on lies.  Sometimes the Court finds the lies are insufficient to grant an annulment and the marriage was valid.  Other times, the Court finds the lie went to the heart of the marriage.  For example, someone marries another without knowing they cannot conceive children.

If arguing fraud, you have 4 years from the time you discover the fraud to file for an annulment.

  1. DURESS: This is where a spouse is forced into marriage by threats or violence against their will or better judgment.  That spouse did not freely enter into the marriage. 

If arguing duress, you have 4 years after the date of marriage to file for an annulment. 

  1. BIGAMY: When a spouse is already married and never obtained a divorce or annulment.  This situation may happen when one spouse does not complete the divorce action so that there is no entry of a judgment of divorce.  Technically, that party is still married.  In other situations, a spouse may know they are already married but the other spouse does not.
  2. INCOMPETENCE: This can be granted if one of the spouses was not legally competent to agree to be married  for such reasons as:
  • The spouse is subject to a conservatorship;
  • The spouse was so intoxicated they were incompetent to get married;
  • The spouse was under the influence of drugs to such an extent as to render them incompetent to enter into a marriage;
  • The spouse is mentally incompetent to get married; or
  • The spouse is physically disabled to such an extent as to be incompetent to get married. 

If arguing incompetence, you have 4 years after the date of marriage to file for an annulment.  Other states may have much stricter time limits.

The following are generally not grounds for an annulment:

  1. One spouse cheating on the other;
  2. A very short marriage; or
  3. Making a mistake.

If the Court finds the marriage was invalid and grants an annulment, the marriage is treated as if it never existed.

If the Court grants an annulment, that is the end of the marriage.  There is no requirement to provide financial disclosures or do any other paperwork typically required in a divorce or legal separation matter.

Annulment and children: 

However, if the Court grants an annulment and the parties had a child together, the Court does not invalidate orders regarding the child unless a party files a separate paternity action.  A paternity action gives the Court the power to determine the parties are the child’s parents and both parents can get legal rights to the child. 

Ecclesiastical annulment:

Another type of annulment may be granted through a Church tribunal.  This ecclesiastical annulment is a separate procedure, and without it a Catholic cannot get remarried in the Church.  In the Jewish faith, the wife must obtain a ‘Get’ to remarry. The Court has nothing to do with an ecclesiastical annulment.

Valid Marriage – Divorce

In a divorce, the Court proceeds to dissolve a legally valid marriage.  In this instance there are procedures to follow, lots of forms to fill out and financial disclosures to be completed. 

In a divorce, any child born during the marriage is presumed to be the child of both of the parties.  Therefore, there is no need to file a separate paternity action.  Child custody, visitation and support are handled as part of the divorce action. 

 

 

The Importance of the CFLS Designation

A Certified Family Law Specialist, or CFLS, is an attorney who has obtained certification in the standards of California family law and demonstrated optimal legal competence. Attorneys who obtain this certification have specific expertise in all aspects of family law, which includes divorce or the dissolution of marriagechild and spousal support, child custody, and temporary restraining orders, among other areas of emphasis.

Not every attorney practicing family law has obtained this certification. In fact, the designation remains relatively rare—there are fewer than 2,000 CFLS attorneys in California and fewer than 200 in San Diego.

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