San Francisco matrimonial attorneys at Lvovich & Szucsko P.C. can explain how an annulment can serve as an alternative to marriage dissolution in helping you meet your objectives.
A marriage can be legally dissolved in California, restoring spouses to “single” status, only by (a) death of one of the parties; (b) a judgment of marriage dissolution; or (c) a judgment of nullity of marriage (formerly called an “annulment”). (Fam. Code, § 310).
Petitioning for a judgment of nullity, rather than marriage dissolution, should only be considered if the validity of the marriage is in doubt. A nullity proceeding is used when, for reasons existing at the time of the marriage, no valid marriage ever occurred. In other words, that the marriage, from its inception, is either void or voidable. (Fam. Code, § 2210). By contrast, a dissolution action is maintained to terminate a valid marriage for reasons that arose after the marriage was entered. (Fam. Code, § 2310). Put another way, a dissolution action is meant to terminate the marital status of the parties, whereas a nullity action asks whether the marital status ever existed in the first place.
Grounds and Effect of a Judgment of Nullity of Marriage
Under the Family Code, a proceeding for a judgment of nullity may be based on either a void or voidable marriage. (Fam. Code, § 2250). The two types of marriages that are void from the beginning are: (1) incestuous and (2) bigamous or polygamous marriages. (Fam. Code, § 2201). When a marriage is “void from the beginning,” it is treated by the law as having never existed, and its invalidity can be asserted and shown in any proceeding where the fact of marriage may be material.Estate of Gregorson (1911) 160 Cal. 21, 26.
Unlike void marriages, a voidable marriage is a valid marriage between the parties, and as against third parties, until it is declared a nullity by a judgment of nullity rendered by an appropriate court. Estate of LeMont(1970) 7 Cal. App. 3d 437, 439. Under Family Code Section 2210, a marriage is “voidable,” rather than void, if consent was obtained by force or fraud, if a spouse was not of age to consent, if a spouse was of unsound mind, if an absent spouse is believed dead, or if a spouse was physically incapable of entering into marriage.
Family Code § 2211 sets time limits by which a proceeding to obtain a judgment of nullity of a voidable marriage must be commenced. These time limits are dependent on the nature of the voidable defect. If a nullity proceeding is not commenced within the statutorily prescribed time, the marriage remains valid and can no longer be voided on those grounds. Thus the parties to a voidable marriage are considered legally married until a judgment of nullity of the marriage is entered.
The Effect of a Judgment of Nullity
A judgment of nullity restores the parties to the status of unmarried persons. (Fam. Code, § 2212). A judgment of nullity, whether of a void or voidable marriage, is based on the premise that no legal marriage ever existed. This means that the judgment “relates back” to the date of the purported marriage, and erases the marriage and the consequences of any mistaken reliance on the marriage. Marriage of Goldberg (1994) 22 Cal.App.4th 265, 271. In other words, the parties are treated as if they never were married.
Choosing between a Dissolution or Nullity Proceeding
In some ways, a judgment of nullity of marriage is similar to a judgment of dissolution of marriage: both judgments will restore the parties to unmarried status, and both will generally adjudicate the entire controversy between the parties arising from the marriage or purported marriage. (Fam. Code, §§ 2212(a), 2300).
This means that a spouse who is seeking to terminate a voidable marriage will often have a choice of remedies. This is because the same facts that give rise to establishing a voidable marriage for the nullity proceeding will also undoubtedly constitute “irreconcilable differences,” which are necessary for dissolution.
In deciding whether to commence proceedings for dissolution or for nullity, the following issues are relevant:
- In a nullity proceeding, the petitioner must submit evidence establishing one of the grounds for nullity. This evidence may be challenged by the respondent. By contrast, dissolution only requires the petitioner’s testimony that there are “irreconcilable differences.” (Fam. Code, § 2333).
- In a nullity proceeding, in order to be entitled to spousal support and a division of the quasi-marital property, the petitioner must show that he or she is a putative spouse (i.e., a spouse who believed in good faith that the marriage was valid). Alternatively, if the petitioner can show that the respondent is not a putative spouse, the petitioner may preclude the respondent from receiving spousal support or an equal share of marital property. (Fam. Code, §§ 2251-2254).
- In a nullity proceeding, attorney’s fees may only be awarded to a putative spouse (i.e., a spouse who believed in good faith that the marriage was valid). (Fam. Code, § 2255).
- At least two grounds for nullity (bigamy and incest) are also crimes and may subject one or both parties to criminal penalties. (Penal Code, §§ 281-285).
- A judgment of nullity terminates the marriage on entry, while a judgment of dissolution does not become effective for purposes of terminating the marriage until the expiration of a six-month waiting period (which may be extended another six months for good cause). (Fam. Code, § 2339).
- A nullity proceeding has no residency requirement; a dissolution proceeding requires one party to have been a resident of the state for six months, and of the county for three months, before filing the petition. (Fam. Code, § 2320).