What’s the Difference Between a Divorce and an Annulment?



In the eyes of the law, there are two ways to legally end a marriage: divorce and annulment. It is important to understand the difference between these two if you are seeking a permanent end to your marriage. Both parties do not have to agree to end the marriage for a divorce or an annulment to take place; refusal in the process does not stop the case from going to court.


Divorce

Legally, a divorce, also known as a dissolution of marriage, is the ending of a valid marriage that returns both parties to single status with the option/ability to remarry. To be valid for a divorce in California, one of the spouses need to be a state resident for a minimum of six months before filing. Also, the spouse who files need to live in the county filed for a minimum of three months. In California specifically, the couple needs to wait a minimum of six months after filing for the divorce to be finalized. California is one of seventeen states that is considered a “no fault” divorce state. This means that the spouse/ partner asking for the divorce does not have to prove that the other party did something wrong. In order to be granted a no fault divorce, the party has to legally state that the couple cannot get along, legally referred to as “irreconcilable differences.”


Regarding the division of assets in a divorce, if parties agree to a fair and reasonable separation of property, then the court most likely will oblige. However, if parties cannot come to an agreement then property will be divided by the court. It is important to understand that California is considered a “community property” state, meaning that all property, debt, asset or income earned from the date of marriage to date of separation is divided and then distributed equally between the spouses. This is under the Court’s assumption that spouses’ earnings and property are joint.


Marital property and separate property are also factors to be considered during the divorce process. Marital property is all earnings acquired during a marriage and everything that goes with the earnings, which also includes debts incurred. Separate property is anything acquired or earned by a spouse before the date of marriage and/or after separation. Separate property is also gifts, inheritances, personal injury awards and pension (received before marriage) specifically in name of one of the spouses. In a divorce, each spouse will most likely receive assets totaled to equal value.  


Annulment

An annulment is a legal procedure that cancels a marriage as if it is completely erased. This legally means that the marriage was never valid, nor existed. In California, the party seeking the annulment is required to show the judge that at least one of the reasons below existed during the period of the marriage. If these reasons are proved, then the judge will grant the request to annul the marriage between the parties.


  • The couple is related by blood.

  • One of the spouses was already married (and did not legally end the marriage) before entering into the second marriage. (A person is allowed to file for an annulment at any time while the spouse from the first marriage is still alive)

  • The spouse who is requesting the annulment was not eighteen years or older when the marriage took place. (A person must file for an annulment within four years of the underage partner turning eighteen years old.)

  • One of the spouses committed fraud to acquire the other’s marriage consent. (Must file for an annulment within four years of discovering the fraud.)

  • One of the spouses has an “incurable physical incapacity.” (Must file for an annulment within four years after getting married.)

  • One (or both spouses) is of “unsound mind,” which is a mental condition that does not allow an individual to understand/ appreciate marriage’s nature and duties. (Allowed to file for an annulment at any time while either is still alive.)

  • One spouse forced the other to get married. (Must file for an annulment within four years after getting married.)

Regarding the division of assets in an annulment, courts do not have the legal authority to grant alimony or separate property/ debts. This is because an annulled marriage is considered invalid and non-existing. There is one narrow exception, but it is challenging to prove. Parties seeking an annulment are required to divide their own property, assets and debt. For example, California’s community property laws do not protect couples with annulled marriages. Neither spouse is allowed to collect spousal support, inheritances, retirement interests or benefits from the other. Again, there is a narrow exception, but is challenging to prove.


A.L. Harvey Law has comprehensive knowledge in family law matters, helping individuals file for a divorce or an annulment, while giving legal support. If you have any further questions regarding the difference between a divorce and an annulment, or need help legally ending your marriage, please do not hesitate to contact us at info@alharveylaw.com or (530) 217-3520.


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