Divorce Vs. Annulment | What is the Difference?

The difference between divorce and an annulment is that a divorce ends a legal and valid marriage while an annulment dissolves a marriage as if it never happened due to it being invalid. In the state of California, divorce can be filed for any irreconcilable difference or disagreement, but an annulment has a strict list of circumstances and statute of limitations specific to each of those circumstances. Since California is a no-fault state when it comes to divorce, property and assets are split evenly between both spouses either by an agreement reached between the spouses or by the order of a judge. Along with this split, child custody, alimony, child support, and other requirements or limitations are put in place. Since an annulment is a determination that the marriage was never valid, there is no community property or joint assets to split between the parties. The community property laws that normally apply to married couples and divorce proceedings do not apply to an annulment. Instead, each spouse is entitled to what is in their name. Additionally, parentage, which applies to the father of children, is no longer viable from the marriage, and as such the mother is the only one that retains direct parentage. Without establishing parentage, child support and alimony cannot be awarded.

Reasons To Get A Divorce

Divorce occurs for any number of reasons, but the end result is that the spouses in a marriage or partnership have reached an irreconcilable difference that can only be resolved by dissolving the marriage or partnership. Reasons for divorce are numerous and, in the state of California, the judge does not need any more reason or proof than one party stating there is an irreconcilable difference. Some reasons one might get divorced are as follows:

A spouse has been unfaithful
Domestic abuse
Child abuse
Distance between spouses
Disagreements on ethics/politics
Differences in religious practice
Lack of feelings or emotions
Change or realization of sexuality
Change or realization of gender
Crime

Reasons To Get An Annulment

The reasons for an annulment revolve around a spouse discovering something about the other that was not apparent at the time of marriage and would cause the marriage to be invalid or illegal. Unlike divorce, California has very strict requirements and statutes of limitations that must be met for an annulment to be ordered by the court. These circumstances are as follows:

The spouses are related by blood
A spouse was already married when they entered into another marriage (i.e. bigamy)
The spouse requesting annulment was not 18 at the time of marriage
A spouse committed fraud to gain consent for marriage. (i.e. a criminal past or a prior marriage)
A spouse has an “incurable physical incapacity.” (i.e. an inability to have sexual relations)
A spouse suffers or suffered from an illness resulting in an “unsound mind” or inability to provide consent. This does include severe intoxication
A spouse coerced or forced the other into a marriage

Statutes of Limitations Of Divorce vs. Annulment

Divorce

When it comes to filing for divorce, there is no statute of limitations. This means that no matter how much time has passed after a marriage has occurred, one may file for a divorce. Instead of a statute, there is a mandatory waiting period. After a divorce is initially filed, the couple must wait six months before proceeding forward with a court hearing. This is to ensure that the couple truly wants to dissolve their marriage as well as providing time for the couple to try and divide their assets themselves. If the assets are not divided beforehand or the couple cannot come to an agreement, there will have to be court sessions facilitated by the judge and attorney to decide the final outcome. This process can become very expensive if not figured out beforehand.

Annulment

Aside from the differences listed above, an annulment also has a statute of limitations specific to the circumstance one is requesting annulment under. These limitations are in place to provide a time period in which the spouses can learn about each other and discover if there was any information not revealed before the marriage. The limitations are as follows:

If married when under the age of 18, one has four years from the date of marriage or 4 years after turning 18 years of age
If a spouse was already married and got married again (bigamy), one may file for annulment anytime while the spouse from the first marriage is still living
When filing under the basis of “unsound mind” or mental illness, one may file anytime up until death. Alternatively, a relative or conservator unwell may also file for annulment
If fraud is the reason for annulment, one must file within four years of the discovery
If one was forced to consent to marriage, one must file within four years of getting married
If the reason is physical incapacity, sexual incapacity, or impotency, one must file within four years of the marriage

The California Divorce Process

Getting a divorce in California can be condensed into seven steps.

One spouse files a divorce petition with the local court and then serves it to the other spouse
The other spouse or the respondent then must file a petition in response within 30 days
At this point, a spouse can request temporary court orders and an Order to Show Cause. At this initial hearing, a judge will decide temporary child custody, child support, alimony, child support, and restraining orders
Next, the spouses enter the discovery period of the hearing where relevant documents and information are exchanged. These include income reports, expense reports, tax documents, and other assets. Additionally, a Preliminary Declaration of Disclosure is filed which lists the community and separate property of each spouse.
The discovery period is followed by settlement. In the settlement period, attorneys, mediators, and or spouses try to reach a final decision on the divorce case. If the case is resolved by agreement, an attorney or family law facilitator must produce a Marital Settlement Agreement. This will include the stipulations, initial payments, and distribution of assets and debts. This contract is then signed by the spouses and their representatives.
If a clear and full agreement is not reached between the spouses, the judge will convene a trial.
After the Marital Settlement Agreement is signed or when the trial concludes, an attorney or the family law facilitator will prepare a Judgment of Dissolution of Marriage. This document records the court orders set in place and bears the name of the spouses and the officiators of the contract. It will then be filed and the divorce will be finalized.

How Can I Get an Annulment in California?

In order to get an annulment in California, one must complete the steps listed below. Similar to divorce, getting an annulment can be a complicated process. For this reason, it is recommended that one retain a lawyer to assist with the process. This is especially true when it comes to dividing property and other assets. It is also important to remember that the plaintiff of the annulment has the burden of proof. The annulment process can be condensed into these 10 steps:

The petitioner must fill out these court forms: Petition — Marriage/Domestic Partnership (Form FL-100)– This form will contain details about the marriage or partnership as well as the grounds one is filing an annulment under and any other court orders.
Summons (Form FL-110)– This form contains details and restraining orders that both spouses must abide by. It governs moving assets, property, money, and children without the other’s consent. If children under the age of 18 are involved, fill out Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (Form FL-105/GC-120)
File a Declaration (Form MC-030) and the Attached Declaration (Form MC-031) to declare the intent of annulment. This document is signed under oath and could result in perjury if false. This document should detail why one is asking for an annulment, and it should contain specific details pertaining to the specific circumstance.
Have the forms reviewed by either a lawyer familiar with family law or by the family court facilitator. This could help save time and money that would otherwise be spent refiling the forms in the correct manner.
Ask the court clerk if there are any required local forms.
Make at least 3 copies of the forms. One for the judge, one for the other spouse, and one to keep. The original will also go to court.
File both the originals and the copies with the court. The clerk will keep the original and stamp the copies as filed. There is a filing fee of around $435, but this can be waived by filing a fee waiver form if one is suffering from financial hardship.
Serve a copy of all of the filed papers, aside from the fee waiver if applicable, to the other spouse. These can be served by any adult aside from oneself. One could also serve by mail with additional documentation. Additionally, attach a blank Response (Form FL-120), and a blank Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (Form FL-105/GC-120) if one has children under the age of 18.
Wait 30 days for a response from the other spouse.
Finally, ask for a court hearing where the judge will review the documents and make a determination. Remember, in an annulment, the judge is not responsible for dividing assets as the marriage will have never existed if the annulment is granted.

How To Establish Parentage in California

After an annulment is granted, the paternity of children born of a marriage or partnership becomes invalid as well. Due to this, it is important to reestablish paternity after an annulment. This can be done in three ways.

One may file a voluntary declaration of paternity. This must be done at the local child support agency, the Registrar of Births, in front of the Family law facilitator at the local superior court, the Welfare offices, at the hospital following the child’s birth, or in front of a notary public. After signing, this must be filed with the California Child Support Services. Following the signing of voluntary paternity, one must then file these documents with the court and request a court order for any further measures.
One may file with the local child support agency for shield support. Filing with the LCSA is a free service that they will partake on the plaintiff’s behalf. During this process, paternity will be established in the process of trying to obtain child support.
One may file for paternity with the court. This is a complicated process that the California court system recommends hiring a lawyer for. For more information, contact the local court’s family law facilitator or a lawyer that practices family law.

Contact Pride Legal

If you or a loved one has been wanting to get a divorce or an annulment, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.