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There are two options to end a marriage. You can choose divorce or you can choose annulment. Divorce is by far the more common choice because qualifying for an annulment is not easy. However, the better option is almost always a an annulment because the proceedings are often faster, cheaper, and more favorable to you. Therefore, before you consider a divorce, you should look to see if you fall under the categories that allow for annulment.
While every state has different rules about qualifying for annulment, they stem from similar principles. I will set out the general principles as they are applied in California. For more specific guidance, you should contact a local family law attorney.
A marriage can be annulled if it had something fundamentally wrong at its inception. These fundamental faults include if the marriage is bigamous, polygamous, or incestuous. Most marriages are found to be void on grounds of bigamy. If one of the spouses is married, but the former spouse has disappeared or run-off then the law requires that the former spouse be out of contact for five years or be presumed dead. However, if the former spouse reappears, then the marriage may qualify for annulment.
If there was not a fundamental fault at the beginning of the marriage, it may still be annulled if the marriage was forced. For example, if one of the participants to a marriage ceremony was so intoxicated as not to know the nature of the ceremony and its legal effect then he is of unsound mind and could qualify for annulment.
Finally, fraud may render a marriage voidable if the fraud goes to very essence of the marriage relationship. Misrepresentations that have been held to go the very essence of the marriage relationship include the intention never to live with the spouse, the promise to have children without intention to perform, the concealment of a criminal record, the concealment of a sexually transmitted disease, the concealment of impotence or sterility, and the intent to enter the marriage was based solely on obtaining a green card.
Annulment is almost always the better choice.
The greatest advantage of an annulment is the timing. In many states, there is a required waiting period between a filing a divorce and its finalization. Often this waiting period is 60 – 90 days; however, in California the waiting period is 6 months. An annulment has no waiting period, you are legal separated the day the court rules on your annulment.
The second advantage is that the court generally looks favorably on those who are seeking legitimate annulments. The result is that support, alimony, property divisions, and maintenance decisions often weigh in favor of the annulling party. Depending on the length of your relationship, your common property, and other obligations, you may still be required to pay some form of support; however, if you are claiming an annulment on fraud or other particularly moving factual situations the court is more likely to rule in your favor.
Therefore, when facing a choice between divorce and annulment, if you can qualify for an annulment, if that is the case it is almost always advantageous to proceed in that direction.
If you are facing an annulment, the San Diego Divorce attorneys at Goldberg Jones can be your advocate. They have the experience to provide you sound counsel on the best way to proceed in a separation. For more information, please call 1-800-divorce for a free consultation.
