San Diego Legal Separation & Annulment Attorney (2023)

The end of a marriage is always stressful and sad. It is a period when emotions run high and anger and bitterness take the place of sound reasoning and logic. If you reach a point when you want to end your marriage, it’s important to carefully consider all your options. When looking for information on annulments, sometimes you know that it is the best option for you, other times, you are ready for a divorce but then you come to learn that an annulment is a better fit for your case. Before you decide on the way forward, it is important to have as much information as possible. If you’re contemplating an annulment in California, you need to know what it is, the requirements for application, and the effects it can have on your life. If you have any questions concerning this procedure contact San Diego Family Law Attorney today at 619-610-7425 for a free initial consultation. We are here to help.

Annulment Vs Divorce

While divorce is the often the common option, you may have a better option if you choose an annulment of your marriage. An annulment also referred to as nullity of marriage occurs when a marriage or domestic partnership is legally declared invalid. In other words, it is null and void and technically,never existed. Though annulments and divorces are similar in the fact that they lead to the end of a marriage or domestic partnership, they have a significant difference. Divorce is the termination of a marriage or domestic partnership that is already legal while an annulment is a legal declaration that nullifies a marriage that was illegal from the beginning. This means that the union deviated from the requirements of state law during its establishment. UnderCalifornia Family Code Section 2212, once a marriage is declared null and void, the person returns to the status of being unmarried.

In California, marriage annulments fall into two categories: religious annulments and civil annulments. A civil annulment is issued by the courts and may not be required to obtain a religious annulment. Therefore, it’s imperative that you consult with your clergymen concerning the qualifications for a religious annulment if you were married in a religious ceremony. Also, some religions do not tolerate divorce but prefer annulment as the best way to end a marriage.

Grounds for an Annulment in California

If you are seeking an annulment in California, it's important to know that a judge can only grant your request if you meet one of the specified conditions. A marriage can be rendered invalid on the following grounds:

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  • Incest: Marriages and registered domestic partnership involving close blood relatives are void and therefore not valid, legal marriages.
  • Bigamy: If someone marries a second time while he or she is married or in a domestic partnership with another individual, the second marriage is void.
  • Underage: A marriage is considered voidable if one of the parties was under the age of 18 when the marriage took place.
  • Unsound mind: If at the time of the marriage one of the parties was considered to be of unsound mind, meaning that he or she was unable to understand what it meant to enter a marriage, or the contract and obligations that come along with it, the union may be considered invalid. Being of unsound mind may involve a mental condition and even intoxication that prevents one from understanding the events or making a reasonable decision.
  • Fraud:If either party defrauded the other to obtain the other party’s consent, the marriage can be annulled. In this case, fraud involves a cover-up of facts or a false representation, which goes to the heart of the marriage and alters the very essence of the union. This means that the fraud directly affects the party who was deceived. Some examples include hiding the inability to have children, a woman being married without telling her husband that she’s pregnant with another man’s child, marrying only to get a green card, or never disclosing one’s criminal history.
  • Force:If one party obtained the other party’s consent of marriage by using force, the union can be annulled.
  • Incurable physical incapacity: This typically refers to the inability to engage in normal sexual relations or what you'd call impotence. This inability must be ongoing and appear to be incurable.

If you meet any of the above qualifications, contact your family lawyer to discuss your options for an annulment. This is imperative since you will need the attorney to help you prove that your situation and facts are true. The laws regarding an annulment can be exceedingly complex for an ordinary person to hover around and proving what you are saying is true can be one of the most difficult things you’ll do when seeking nullity of marriage. It’s always best to work with an attorney specializing in this area.

Why Would You Choose File an Annulment Over a Divorce?

There are several reasons why couples choose annulments over divorces. If your situation is best described by any of the above reasons, the best option you have in ending your marriage or domestic partnership is an annulment. When your marriage is considered null and void, you will be freed from the union without some of the hassles of a divorce. For instance, in an annulment, there is no division of property and this means that parties will not split things like shared businesses, bank accounts, or retirement accounts. Also, it does not allow for spousal support or child custody. This is because there was no valid marriage or it just never existed and there was no community property acquired.

Many people think that annulments are only for those who are very young for marriage, those whose marriages have lasted for a very short time, or those separating for religious reasons. This is far from the truth since a marriage can be annulled for different reasons and the length of the marriage does not play a role in deciding whether one qualifies for an annulment. However, in longer marriages, it may be more or less difficult to prove your eligibility. For many,annulmentis a better option than divorce or a legal separation.

Putative Spouse Exception

According toCalifornia Family Code Section 2251, a party to an invalid marriage or domestic partnership may have a domestic partner or putative spouse status if they believed that the marriage was valid and he or she had no reason to believe there were deficiencies facing the union. In this case, the putative spouse may have a right to support, division of community property, and other benefits associated with the union. For one to be given a putative spouse status you must prove that you had a “good faith” believed that the union was legal under California law.

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Child Custody and Visitation Orders

Once an annulment is finalized, it means that the marriage never existed and if there are children involved, issues related to child custody and visitation will be handled as though the child’s parents are unmarried. Paternity must be established before the parents can create a custody and visitation agreement. During the annulment process or after the court has nullified the union, the parties can open a custody and visitation case to take care of the child’s wellbeing. Paternity must also be established in this case.

Is There a Deadline for When I Can Filean Annulment?

While there’s no deadline for filing divorces and legal separations, there is a deadline, called a statute of limitations, when filing for an annulment. The statute of limitations provides a guideline on the time limit for when to bring a lawsuit. The statute of limitations depends on the legal reason you want to use in obtaining an annulment. Below are the deadlines for the various legal reasons:

Underage: If you decide to file an annulment because at the time of marriage or registration of the domestic partnership you were younger than 18 years old, you have four years after you turn 18 to file for the annulment. Additionally, a parent or guardian of the underage person must file before the minor’s 18thbirthday.

Unsound mind:If your partner or spouse is of unsound mind, you may file for an annulment any time for as long as both parties are alive. The same applies to any relative who files on behalf of the person who is of unsound mind.

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Fraud: If you consented to a marriage because you were deceived, you must file for an annulment within four years of learning that you were defrauded.

Prior existing marriage/ missing person: If your reason for seeking an annulment is because one person abandoned a previous registered domestic partnership or marriage without going through the legal procedure of divorce or separation, either party of the second or current union may file for an annulment so long as both parties are alive. The same stipulation applies to the former spouse or partner.

Physical incapacity: If your spouse or partner is unable to engage in normal copulation, you must file for an annulment within four years after you got married or registered the domestic partnership.

Force:If you were forced into the marriage or registered domestic partnership, you must file for an annulment within four years after you got married or registered the domestic partnership.

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Annulment Process in California

Before you apply for an annulment, it's advisable to first determine if you meet the requirements to file. The process is not as simple as it may appear to be and it can be a confusing mess of rules, forms, and legalese. A simple mistake can get result in your request being rejected. This is why it is advisable to retain the services of a San Diego annulment attorney. Steps to the annulment process include:

  • Filing the necessary forms;
  • Leave the originals with the court clerk and get two copies; one for you and one for the other party
  • Get the annulments forms served to your spouse either by an adult or a professional process server
  • Your spouse is supposed to file a Proof of Service Summons to the court and your role is to ensure that that is done
  • Get evidence and documents that you’ll use to prove that you’re eligible for an annulment. This should be done before you attend a hearing.
  • Attend a hearing
  • the judgment on your case is made

Can the Court Deny My Request?

Before an annulment can be granted, the interested party must prove that the domestic partnership or marriage is invalid. If you fail to prove your eligibility, the court may not grant your annulment request. In this case, you will be left with the option of filing an amended petition with the court that will allow you to instead apply for a divorce or a legal separation. Important to remember, there are residency requirements if you chose to apply for a legal separation before you can file for a divorce. At this juncture, the laws and regulations regarding annulments will no longer be applicable in your case.

There are only limited cases which annulments are granted and it's important to speak with a skilled and experienced San Diego annulment attorney who can assess your facts and advise you on the best approach to take. If an annulment is not the best option, the attorney must be able to advise you accordingly.

Need a Lawyer for an Annulment in Pasadena?

A legal annulment ends a marriage and allows partners to regain the status they had prior to their marriage. However, the transition can be difficult and full of complex legal requirements and of course emotional issues. As such, the process involves risks and you only have one chance to fix the problem you’re facing, and you want to ensure that you are doing everything right.

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San Diego Family Law Attorneycan assist you in the annulment process by advising you on what to file, and where and how to file it. With extensive experience in handling annulments, you can be sure that we’ll be dedicated to helping you resolve your issues in an equitable and fair manner. If you think you have a valid reason for an annulment and you’re contemplating pursuing it, connect with one of our experienced attorneys today to get help in making these important decisions. You can get started by filling our online contact form for a case review and we will get in touch with you. You can also call us at 619-610-7425 for a free consultation and we’ll be happy to answer your questions. We will get through this together.

FAQs

Is legal separation cheaper than annulment? ›

No, Legal Separation is not cheaper than Annulment. Legal Separation automatically puts the spouses on opposing sides. You and your spouse will fight it out in court. Legal Separation is often more costly and more time consuming because of this.

What are the disadvantages of a legal separation? ›

Disadvantages of Legal Separation

Legal separation typically does not entitle you to your spouse's assets, whereas a divorce would force a division of current assets. Can't Remarry: You may heal and be ready for a future relationship given enough time. A legally separated person cannot marry a new person in the U.S.

Do both parties have to agree to a legal separation in California? ›

Family Code section 2345 states, "The court may not render a judgment of the legal separation of the parties without the consent of both parties unless one party has not made a general appearance and the petition is one for legal separation." That means both spouses must consent to a legal separation judgment.

How long does it take to finalize a legal separation in California? ›

While there is no required separation period in the state of California, there is a six month waiting period. This means that you can file for divorce on the day you decide you want one, but you must wait six months for the divorce to be finalized by a judge.

How long do you have to be separated before your marriage is annulled? ›

It is established by reference to one of five facts – adultery, unreasonable behaviour, two years desertion, two years separation with consent or five years separation.

Is 10 years of separation ground for annulment? ›

Even if you are separated from your spouse for 10 years, it is not a sufficient ground for annulment. However, long separation will greatly depend on the circumstances. The petitioner is allowed to remarry if the court provides a declaration of presumptive death of the absent spouse.

What happens if you separate but never divorce? ›

Legal separation permits each spouse to move on, independently, from their marriage, without going through the formal divorce process. Legally separated couples can often continue providing each other health care, Social Security benefits, and tax benefits.

What should you not do during separation? ›

But if you don't want to end up like those couples, then here are the things which you should not do during a separation.
  • First, what to do. ...
  • Don't Deny your Partner some Time with your Kids. ...
  • Never Rush into a New Relationship. ...
  • Never Publicize your Separation. ...
  • Never Badmouth your Ex. ...
  • Ending it With Bad Blood.
24 Dec 2019

How long is too long for a separation? ›

Ideally, psychologists recommend that a trial separation last no more than three to six months. The longer you spend apart from your spouse, the harder it will be for you to get back together.

How long does a legal separation take? ›

Decree of Legal Separation.

An action for legal separation may be finished from 10 months or several years depending on various factors like the complexity of the case (e.g. properties and custody, support, etc.

Why would you get a legal separation instead of a divorce in California? ›

A legal separation is an official court order from the state where you and your partner live apart and carry on your lives separately. This option allows you to create financial boundaries, determine who is responsible for assets and debts, and detail child custody and support rules, without the permanence of divorce.

Can you date while legally separated in California? ›

A commonly asked question about legal separation that I hear often is “Can I date while I am legally separated?” Technically the answer is yes because California is a no-fault state. However, if you have children, be advised that dating while legally separated could influence child custody arrangements.

Can you get an annulment without the other person? ›

Yes. However, you must provide necessary proof showing that your decision is valid to complete this process. If you can prove the above factors in the annulment process, there's nothing that your partner can do to stop it.

Does a husband have to support his wife during separation? ›

If you're in the process of filing for divorce, you may be entitled to, or obligated to pay, temporary alimony while legally separated. In many instances, one spouse may be entitled to temporary support during the legal separation to pay for essential monthly expenses such as housing, food and other necessities.

How do I reverse a legal separation in California? ›

Ending a legal separation in California involves creating a motion to vacate the court's order of legal separation. You must follow the court rules for filing the motion, serve the other party, and state in court documents that you no longer wish for the legal separation to be in effect.

What are the two common grounds for annulment? ›

The grounds for annulment of marriage must have been existing at the time of marriage, and include lack of parental consent (FC, Article 45[1]), insanity (FC, Article 45[2]), fraud (FC, Article 45[3]), duress (FC, Article 45[4]), impotence (FC, Article 45[5]), and serious and incurable sexually transmissible disease ( ...

Is 5 years of separation ground for annulment? ›

House Bill (HB) No. 1062 provides that at least five years of actual separation should be a valid ground for an annulment, which is normally a very long, tedious and expensive legal process in the Philippines.

How do you know if your marriage is beyond repair? ›

5 Signs Your Relationship Is Beyond Repair
  • 1) You keep breaking up and getting back together. ...
  • 2) You're afraid of your significant other. ...
  • 3) Your bond or feelings have dissipated. ...
  • 4) Your relationship is tainted with toxicity. ...
  • 5) One or both of you aren't willing to make an effort.
28 Nov 2017

What are the three grounds for an annulment to be granted? ›

You can annul a marriage for a number of reasons, such as: it was not consummated - you have not had sexual intercourse with the person you married since the wedding (does not apply for same sex couples) you did not properly consent to the marriage - for example you were forced into it.

What is the most acceptable ground for annulment? ›

The only way to obtain a civil annulment that legally dissolves your marriage is by proving one of the following grounds: fraud or misrepresentation, lack of consummation, incest, bigamy, lack of consent, unsound mind, or force.

How long does annulment process take? ›

How long does a civil annulment take? The entire process can take anywhere from six months to four years, depending on the court's calendar. After the initial consultation and contract signing between you and your chosen attorney, your petition will be prepared.

Why separation in marriage is not good? ›

Separation can be damaging to a marriage if one partner has no intention of reconciliation, but is leading the other partner on. Some partners may also feel anxious about how the divorce process will be handled or may not even want to ask for a divorce.

What is the first thing to do when separating? ›

7 Things to Do Before You Separate
  • Know where you're going. ...
  • Know why you're going. ...
  • Get legal advice. ...
  • Decide what you want your partner to understand most about your leaving. ...
  • Talk to your kids. ...
  • Decide on the rules of engagement with your partner. ...
  • Line up support.
17 Jan 2020

Is it OK to date while separated? ›

As long as you are living apart, and abide by any legal agreements, dating while separated is legal. However, dating while separated may have emotional implications that may impact the quality of life for your entire family for years to come.

Is dating during separation considered adultery? ›

However, legally, until the court declares your divorce as final, you are still married to your spouse, which technically means that relationships you engage in outside the marriage are technically still considered adultery.

Can you sue your husband for leaving you? ›

In order to prove abandonment, the abandoned spouse must use direct or constructive evidence to demonstrate their claim. The spouse claiming abandonment must prove that the couple kept separate residences and didn't engage in marital relations for a required period, usually a year.

How do you stop a marriage separation? ›

These are:
  1. Step 1: Commit to being together one day at a time. ...
  2. Step 2: Close the exits . ...
  3. Step 3: Adopt the mental attitude that while each of you has a valid experience, neither of you is right or wrong. ...
  4. Do small things for each other every day. ...
  5. Don't wait for your partner to "go first".

Can a separation save a marriage? ›

A separation can strengthen a marriage if it's done for the right reasons and if there are clear agreements from the start. Elements of a successful separation that enhances a relationship include getting third-party support and maintaining regular communication.

What percentage of separated couples get back together? ›

According to U.S. statistics, 87 percent of couples who legally separate eventually get a divorce, while only 13 percent choose to come back together. If you want your marriage to be one of the few that survives, the following suggestions may be helpful: Make your desire to work on the marriage clear.

Can you get back together after a separation? ›

Occasionally and against the odds, some couples are able to reconcile after a period of separation. Statistics based on couples getting back together after a separation show that while 87% of couples finally end their relationship in divorce after a separation, the remaining 13% are able to reconcile post-separation.

What can you say about annulment and legal separation? ›

In Annulment, the marital ties between husbands and wives is severed, capacitating both to re-marry another person, As compared to Legal Separation, where only separation in room and board is allowed, but the marital ties between the spouses subsists.

Is it better to separate or divorce? ›

If you don't see any financial benefit from a legal separation and are certain you want to end your marriage, it might be best to go straight to a divorce. Otherwise, you'll spend time and money getting a legal separation only to have to go through the process all over again to get a divorce.

Do you need an attorney for a legal separation in California? ›

However, the main difference is that under legal separation the parties will not end their marital status after dividing community assets and debts. Luckily, you do not need to hire an attorney to help you with the legal separation process in California.

What is the 10 year marriage rule in California? ›

California is one of a few states where you can benefit in alimony payments from staying married 10 years or longer. In this situation, the spouse earning less income retains the right to be paid alimony for as long as he or she needs, and as long as the paying spouse can pay.

Do you have to file for legal separation before divorce in California? ›

Although legal separation is not required, many couples do file for separation before finalizing their divorce. In California, there is a six-month mandatory wait period after a married couple files for divorce before the court can issue an order for the dissolution of your marriage.

How long do you have to be married to get half of everything in California? ›

How Long Do You Have to Be Married to Get Half of Everything? In California, anything accumulated during the marriage—whether that's five months or fifty years—is considered community property, and subject to an equitable split.

What determines date of separation California? ›

Now, according to California Family Code §70, the date of separation means the date that a final and complete break in the marital relationship occurred, as evidenced by the following: A spouse expresses to the other spouse their intent to end the marital relationship; and.

Is it considered cheating if you are separated? ›

If you engage in a sexual relationship with someone while you are still legally married, it is technically adultery even if you and your former partner do not live together anymore and are no longer emotionally or physically in a relationship.

What is the big difference between annulment and legal separation? ›

In Annulment, the marital ties between husbands and wives is severed, capacitating both to re-marry another person, As compared to Legal Separation, where only separation in room and board is allowed, but the marital ties between the spouses subsists.

How much does an annulment cost in the Philippines? ›

The total cost of annulment in the Philippines is somewhere in between Php 200,000 and Php 500,000 – assuming that the annulment goes uncontested. If either party challenges the case, the costs can balloon to a million or so.

Is 5 years of separation ground for annulment? ›

House Bill (HB) No. 1062 provides that at least five years of actual separation should be a valid ground for an annulment, which is normally a very long, tedious and expensive legal process in the Philippines.

Which is easier divorce or annulment? ›

In most cases, unless the marriage is voidable, it is likely easier to pursue a divorce rather than an annulment.

What are the two common grounds for annulment? ›

The grounds for annulment of marriage must have been existing at the time of marriage, and include lack of parental consent (FC, Article 45[1]), insanity (FC, Article 45[2]), fraud (FC, Article 45[3]), duress (FC, Article 45[4]), impotence (FC, Article 45[5]), and serious and incurable sexually transmissible disease ( ...

How long after a marriage can you get an annulment? ›

An annulment is a way of ending a marriage, similar to a divorce. However, unlike a divorce where you must wait up to one year before you can apply, you can apply for an annulment at any time after the wedding.

How long does a legal separation take? ›

Decree of Legal Separation.

An action for legal separation may be finished from 10 months or several years depending on various factors like the complexity of the case (e.g. properties and custody, support, etc.

Can you get an annulment without the other person? ›

Yes. However, you must provide necessary proof showing that your decision is valid to complete this process. If you can prove the above factors in the annulment process, there's nothing that your partner can do to stop it.

How do you start an annulment process? ›

The following are the steps you need take in an annulment proceeding:
  1. Hire a lawyer. ...
  2. Get a psychological evaluation. ...
  3. File the petition for annulment with the proper court. ...
  4. Attend the pre-trial conference. ...
  5. Go through the trial. ...
  6. Receive the judge's decision. ...
  7. Settle asset distribution.

What are the grounds for annulment? ›

What are the grounds for a marriage to be annulled?
  • Lack of Parental Consent.
  • Insanity.
  • Consent was obtained thru Fraud.
  • Consent was obtained thru Force, Intimidation, and Undue Influence.
  • Impotence.
  • Sexually Transmitted Diseases.

What is the most acceptable ground for annulment? ›

The only way to obtain a civil annulment that legally dissolves your marriage is by proving one of the following grounds: fraud or misrepresentation, lack of consummation, incest, bigamy, lack of consent, unsound mind, or force.

What qualifies for an annulment in California? ›

Grounds for Requesting an Annulment in California

The person requesting the annulment was not eighteen years old at the time of the marriage. Either spouse perpetrated a fraud to obtain the other party's consent to marriage. The fraud has to go to the heart, or essence, of the marriage.

Are you automatically divorced after 5 years? ›

This is just a myth; there is no such thing as an automatic divorce. Put simply, if your relationship has broken down and you have lived apart for more than 5 years, you cannot simply divorce your husband or wife without their knowledge.

Is emotional abuse grounds for annulment? ›

Physical/Emotional Abuse: If you are being subjected to domestic violence (i.e., emotional, psychological, and physical abuse or violent attacks from your spouse), then divorce can be obtained. Even abusive language, as well as threats of physical violence are considered as serious grounds for dissolution of marriage.

Why is an annulment not enough? ›

Unlike divorce, annulment does not terminate a valid marriage on grounds that occur after the wedding vows. Physical violence and irreconcilable differences during the course of the marriage are, in many cases, not reason enough to break free through annulment.

Is lying grounds for annulment? ›

Grounds for Annulment

One of the more common grounds for an annulment is fraud or misrepresentation. In order to get an annulment on this basis, one of the parties must have essentially lied about something material, such as whether they are already married to someone else.

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