Legal Separation And Annulments

What Is A Nullity?

A Nullity Judgment restores the parties to the status of unmarried persons and results in the parties being free to remarry immediately. While a divorce dissolves the existing marriage, a nullity judgment erases the marriage and its implications from the onset, as though the parties had never married.

A Judgment of Nullity, or annulment, may be obtained under any of the following circumstances:

  • Incest;
  • Bigamy;
  • Lack of informed consent to the marriage;
  • The husband or wife of the prior marriage was believed to be dead at the time of the subsequent marriage, but in fact was not;
  • Unsound mind;
  • Fraud;
  • Force, unless afterwards the party who was forced into the marriage freely cohabited with the other party as husband and wife; or
  • Either party, at the time of the marriage, was physically incapable of consummating the marriage, and the incapacity appears to be incurable.

Most people believe that time is a factor in obtaining an annulment. That is not necessarily the case. It is true, for most of the conditions, an action must be filed within four years of the discovery of, for example, the facts constituting fraud. Also unknown to most people is that, even though a Judgment of Nullity voids the marriage, you may be able to obtain support, a division of property and restraining orders. Children do not necessarily bar a party from obtaining a Judgment of Nullity.

What Is A Legal Separation?

Another type of action, separate from a dissolution, is a legal separation. A legal separation greatly resemble an action for divorce except that the parties are not free to remarry. One major advantage of filing a legal separation action is that, unlike a dissolution, there are no residency requirements. A legal separation is not to be confused with the date of separation as explained earlier in "Facts About Divorce." In California, a person does not have to obtain a "legal separation" before filing a divorce.

To learn more about legal separation, annulments or a Judgment of Nullity in California please contact the family law lawyers at Bartholomew & Wasznicky LLP.