CALIFORNIA FAMILY AND DOMESTIC RELATIONS LAW

WHAT HAPPENS IN VEGAS, DOESN’T ALWAYS STAY IN VEGAS: OBTAINING AN ANNULMENT OF YOUR “SPONTANEOUS” MARRIAGE

So, you drove to Las Vegas on a whim to let off some steam for the weekend with your girlfriend of 2 months. You spent the day at the pool drinking margaritas, the early evening at a blackjack table drinking whiskey sours, and the late night at a club drinking long island iced teas. You think the night is over, but your gal pal turns to you and says, “I heard the wedding chapel at this hotel is open 24 hours.” Due to your advanced state of inebriation, which has clouded your better judgment, a light bulb goes off in your head and you say, “Let’s go.” The next morning you wake up with a cheap gold ring on your finger, and no, the woman lying next to you is not Britney Spears. Your first intelligent thought in two days is, “I wonder if my lawyer takes calls on Sundays?”

Lucky for you, California courts have the power to grant you an annulment for various reasons, one being that you were of unsound mind at the time you said, “I do.” If a court grants an annulment, your marriage or domestic partnership will be treated like it never existed. The parties will be restored to the status of unmarried individuals.

The petitioner (person who filed the action for nullity) will have the burden of proving that one of the below necessary conditions apply. A hearing before a judicial officer is required, in which evidence of one or more of the conditions must be presented.

To obtain an annulment, at least one of the following conditions must have existed at the time of marriage:

1. Incestuous marriage: the parties were biologically related
2. Bigamous/prior existing marriage: one of the parties was already married to another person
3. Petitioner was a minor: the petitioner was under the age of 18 and if the petitioner has since turned 18, the parties have not freely cohabitated together as husband and wife subsequent to the petitioner turning 18
4. Unsound mind: at least one party was of unsound mind and after that party came to reason, the parties did not freely cohabitate together as husband and wife
5. Fraud: consent of either party was obtained by fraud and after the fraud was discovered, the parties did not freely cohabitate together as husband and wife
6. Force: consent of either party was obtained by force and the parties did not freely cohabitate together as husband and wife
7. Physical incapacity: either party was physically incapable of consummating the marriage, that incapacity continues and appears to be incurable.

If an annulment is granted by the judicial officer, further orders concerning the division of assets and debts or child custody and visitation may be made.

Pros
1. No minimum residency requirement
2. No 6 month waiting period prior to finality of judgment
3. Legally, the marriage is treated like it never existed
4. Community property rights will not apply

Cons
1. Must prove grounds for nullity
2. Court appearance with testimony is mandatory
3. May be subject to time limitations

You will be more likely to obtain an annulment if you act quickly. A lengthy delay may make it impossible for you to obtain an annulment. Be sure to consult an attorney as early as possible to avoid running the risk of violating a statute of limitation.

Add comment May 29th, 2007

CAN’T LIVE WITH HIM, CAN’T LIVE WITHOUT HIM: LEGALLY ENDING YOUR MARRIAGE WITHOUT A DIVORCE

As a spouse who may be thinking of filing for divorce, you may have reservations or difficulty making the final decision to take that trip down to your attorney’s office. For example, you may feel pressure to stay married due to the negative stigma of divorce perpetuated by certain cultures and religions. Alternatively, you may be dependent on your spouse for valuable benefits, such as medical insurance. What you may not know is that a traditional dissolution of your marriage or domestic partnership* is not necessarily your only option when seeking to formally end your relationship.

LEGAL SEPARATION
California offers the option of a legal separation as an alternative to divorce. A legal separation is similar to a dissolution of the marriage in that a court may make binding orders regarding child custody, child support, spousal support and the division of assets and debts. However, a legal separation will not terminate your marital status.

Pros
1. Cuts off surviving spouse’s right to inherit under intestate succession:
If you die without leaving a will, your spouse will not automatically inherit the bulk of your estate.
2. No more accumulation of community property:
After the judgment of legal separation is entered, any property acquired by you that would have been considered community property will now be considered your separate property and your spouse will have no right to claim any interest in it.
3. Residency Requirements do not apply:
In order to file for a dissolution of marriage, you must meet the residency requirements; you must have lived in the state of California for at least 6 months and the county in which you file your papers for 3 months. However, these requirements do not apply when you file for a legal separation.

Cons
1. Cannot remarry or enter into another domestic partnership:
Since you will not be legally divorced, you may not enter into another marriage or domestic partnership. If you do, the union will be considered void.
2. Both parties must consent to a legal separation:
If you ask the court to grant you a legal separation, but your spouse asks for a divorce, the court will treat the action as a divorce.

If your marriage or domestic partnership has met its end, you may want to consider a legal separation rather than a divorce. Although not right for everyone, for some it may be a convenient way to preserve benefits or to avoid negative stigma associated with divorce, while at the same time legally ending your relationship.

* As of January 1, 2005, the California Family Code equally applies to marriages and registered domestic partnerships.

Add comment May 27th, 2007