Annulment photo 1An annulment (also known as “nullity of marriage” or “nullity of domestic partnership”) is when the court deems your marriage or domestic partnership as being not legally valid. Unlike a divorce, after an annulment, it’s as if your marriage or domestic partnership never existed because it was essentially never legal.  There are some circumstances where marriage is never considered valid, and there are also quite a few legal reason why a marriage can be annulled.

Situations Where Marriage is Never Valid

  • Bigamy – When a spouse or domestic partner is already married or in a registered domestic partnership.
  • Incest – When the individuals who are married or in a registered domestic partnership are close relatives.

Other Legal Reasons for Annulment

Besides bigamy and incest, there are also quite a few legal reason why a marriage can be considered not legally valid.  They include the following: age, prior existing marriage, unsound mind, fraud, force, and physical incapacity.

Age – If the party filing for the annulment was under 18 years old at the time of the marriage or domestic partnership, they were too young to provide consent.

Unsound Mind – Either party was mentally incapable of being able to fully comprehend the nature of the marriage or domestic partnership.  This includes being severely intoxicated.

Prior Existing Marriage or Domestic Partnership – Different from bigamy, this is a situation where the marriage or domestic partnership took place after the previous spouse or partner’s whereabouts were unknown for 5 years or thought to be dead.

Fraud – Either party entered into the marriage or domestic partnership as a result of fraud. Specifically, the fraud must be something at the core of the relationship, where a person was left being deceived. (E.g., marrying for a green card, or similar situations where a person seriously misrepresents their identity or intentions).

Force – Consent by either party was obtained by force.

Physical incapacity – If either party was physically incapacitated at the time of marriage or domestic partnership. For example, if a male spouse is incapable of consummating the relationship due to impotence.

How Does the Annulment Process Work?

The first action in an annulment is the filing of a Petition for a Nullity of Marriage, accompanied with your declaration, which explains your reasons for annulment, and a Summons form. After you have filed the necessary forms, you will need to have file-stamped copies of these documents served on the other party.

Once the other party has been served, they will have 30 days within which to file their response with the court. After their response has been filed, you will need to set up a court hearing and explain your case to the judge.  The respondent will also have a chance to oppose your request if they wish to do so.

If the other party fails to file their legal response, you can then take the necessary steps to request the court enter default and seek judgment in your favor.

Statute of Limitations for Annulment

While divorces and legal separations do not have a deadline within which to file, annulments do have a statute of limitations.  The statute of limitations for annulments depends on which reason you intend to use for the annulment.

Age – The filing party who was younger than 18 at the time of marriage or domestic partnership must file for an annulment within 4 years after turning 18, but a parent or legal guardian can ask for an annulment if the individual is still under 18.

Unsound Mind – If either party was mentally incapable of being able to fully comprehend the nature of the marriage or domestic partnership, their spouse or partner can file for an annulment at any time before the death of either party.  In this case, a relative or conservator of the party of the unsound mind can also file for them.

Prior Existing Marriage or Domestic Partnership – In this situation, an annulment can be filed by either party as long as both parties to the current marriage or domestic partnership are still alive. Annulment can also be filed by the prior existing spouse or partner.

Fraud – An annulment in this case can only be filed by the deceived party, and he or she must file within 4 years of discovering the fraud.

Force – The party who was forced to give consent must file for an annulment within 4 years of getting married or registering for a domestic partnership.

Physical incapacity – The party who is not physically incapacitated must file for an annulment within 4 years of getting married or registering for a domestic partnership.

The Effects of an Annulment on Children and Paternity

Since marriages and domestic partnerships are considered invalid in the case of annulments, what happens when children are involved?

If two people have a child together and subsequently get an annulment, you must ask the judge to establish paternity.  Once paternity is established, you can also explore your options regarding child support and custody.

Legal and Financial Effects of an Annulment

Once a marriage or domestic partnership has been annulled, it’s as if the marriage or partnership did not exist because it was never valid. Each party to the annulment starts with a clean slate and goes back to their original legal status.

Unlike a divorce, an annulment does not carry the same legal and financial consequences, like the issue of community property. As a result, neither party is entitled to spousal support or survivorship benefits. In rare circumstances, there is an exception.  If either party is considered to have “putative” spouse status, they may have the right to community property and support, but this is typically very difficult to prove.

After an annulment, the court will try to restore each party to his or her original financial state. In other words, if you brought any money, property, or debt with you into the marriage or partnership, you will walk away with the same and vice versa for the other party.

Annulments can be just as complicated as a divorce, and it is recommended that you consult with an experienced family law attorney to assist you through the process.

 

 

 

 

 

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