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Should you get an annulment instead of a divorce?

If your California marriage has reached the point where you feel you must end it, you may not realize that you have two options: a divorce and an annulment. Both of them legally end your marriage, but whereas a divorce recognizes that you and your spouse were married, an annulment invalidates your marriage from its beginning. It is like your marriage never happened because legally it did not.

Unlike a divorce which any married person can get, you must qualify in order to get an annulment. Obviously, a bigamous marriage, i.e., one in which either you or your spouse was already legally married at the time you married each other, represents one annulment criterion. A close family relationship between you and your spouse, such as if the two of you are first cousins, is another.

If neither of these two criteria pertains to your marriage, then you must prove at least one of the following in court:

  • That you were under 18 years of age when you got married
  • That your spouse has a physical disability that renders him or her unable to consummate the marriage
  • That your spouse fraudulently induced you to marry him or her, such as by not telling you that (s)he could not have children
  • That your spouse forced or coerced you into the marriage

Statute of limitation

Be aware that unlike in a divorce, you have only a limited amount of time in which to annul your marriage. For all grounds other than underage, you must file for annulment within four years of the date of your marriage or, in the case of fraud, four years from the time you discovered the fraud. If you were less than 18 years of age when you got married, you must file for annulment prior to your 22nd birthday.

Child custody and support considerations

Keep in mind that if you and your spouse had children together, your decision to annul your marriage rather than to obtain a divorce impacts both child custody and support. Since an annulment negates your marriage, this means that your children have no legal father. You must therefore establish your children’s paternity before, as a man, you can seek custody or visitation of them, or, as a woman, you can seek child support.

As with any legal proceeding, you should carefully consider all facts and consequences before you decide whether to obtain an annulment or a divorce.

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