How Is an Annulment Different from a Divorce?

What Is Annulment?

When a couple gets divorced, they go through a legal process to end their marriage. However, an annulment is the process by which a marriage is declared null and void. The key difference is in the validity of the original marriage. An annulment is only possible when the courts find that the marriage was not legally valid. If it is a legally valid marriage, the couple will have to seek a divorce instead of an annulment.

In California, an annulment is also referred to as "nullity of marriage" or "nullity of domestic partnership." The result of a successful annulment is that the legal relationship is not only ended, but it is as if it never happened in the eyes of the law.

Legal Reasons for Annulment

While there are several circumstances in which an annulment can be sought, regretting your decision to marry is not a sufficient one. To qualify for an annulment, it must be clear that some circumstance precludes the validity of the marriage.

Reasons for annulment include:

  • Incest
  • Bigamy
  • Fraud
  • Force
  • Unsound mind
  • Physical incapacity

Other reasons for annulment include an existing prior marriage or domestic partnership. This is different from bigamy. In this instance, the marriage or domestic partnership has occurred after the preceding spouse was absent or presumed dead for five years. A couple may also seek an annulment if the filing party was under the age of 18 when the marriage or partnership took place.

To read more about legal reasons for annulment, review the California Courts website.

Statute of Limitations with Divorce vs. Annulment

If you are married and want to file for divorce, there is no statute of limitations guiding when you can file. Any time you wish to end the marriage, whether you've been married for a few months or twenty years, you may do so. The same applies to legal separations.

However, when it comes to filing for annulments, there is a statute of limitations. This can be fairly complicated as the time limit for when you can file varies depending on the circumstances of the marriage.

For example, if you were married while under 18 and you want your marriage annulled, you must file for an annulment within four years of turning 18. If you are still a minor, your parent or guardian can file for the annulment for you. Meanwhile, if there is a pre-existing marriage or partnership, the annulment must be filed while both people in the partnership are alive. Alternatively, the prior existing spouse or partner can file it.

If you believe you have grounds for an annulment but are unsure about the statute of limitations, reach out to an experienced lawyer, like ours at the Burch Shepard Family Law Group. Our attorneys are well-versed in California annulment law, and we can help advise you on your case.

How Does Annulment Affect Child Custody & Support?

Seeking an annulment can make things complicated for any children you share. Because the marriage is deemed invalid, there is no presumption that your children are shared. This means that you will also have to establish legal paternity for your children, which must be done before establishing child support and child custody orders.

Paternity can be established through a DNA test, by a father acknowledging paternity in a court document, or by adopting the child. In California, you do not have to be the child's biological parent to be declared the parent.

What About Shared Property?

Because the marriage was found to be invalid, the laws that guide a divorce do not apply to your situation. This means, when a marriage is annulled in California, the community property laws cannot be used. Similarly, you will also not have a legal right to spousal support.

However, you may have grounds to regain some of these benefits if you can prove to the courts that you believed in good faith that the marriage was legal under California law. This may potentially grant you putative spouse status, in which case, you may have the right to community property and support benefits.

Always Work with an Attorney

Before filing for an annulment, you should speak with a lawyer to make sure that you fully understand the process and the impact it will have on your life. Seeking an annulment is not easy and, depending on your circumstances, can be a complicated process. There are many misconceptions about annulments out there, such as you can file for an annulment if you have only been married a short time.

By working with a lawyer, you can determine if an annulment is truly appropriate for you. You may also be able to increase your chances of a favorable outcome. Additionally, if you are denied an annulment and wish to pursue a divorce instead, your lawyer can guide you in filing an amended petition.