If your marriage is on the rocks, you may be wondering, “Should I get an annulment or divorce?” This article discusses some of the pros and cons of annulment vs. divorce, but for more information specific to your particular case, feel free to contact David Knecht at davidknechtlaw.com.
1. What is the difference between a divorce and an annulment?
A divorce ends a marriage that was legally valid whereas an annulment ends a marriage that was legally invalid.
2. Will an annulment “sound better” to my friends, family or pastor than a divorce?
In the eyes of the law, an annulled marriage never really existed, whereas a divorce is the dissolution of an existing, valid marriage. If this is an important distinction for you, your family or associates, then you may want to consider annulment.
3. What are the downsides of annulment or risks of annulment?
Annulment has consequences for paternity, child custody, property division and spousal support. These are important issues, so you may want to consult an attorney for complete information about these factors. Additionally, the person seeking annulment has the burden of proof to prove the basis for it, which can be difficult, which is different from divorce, where you can just claim “irreconcilable differences.” For the other party, annulment may have significant downsides. For example, a finding of fraud may allow the innocent party to recover attorney’s fees.
3. How short does the marriage have to be to qualify for annulment?
The length of the marriage is not in and of itself a basis for annulment. However, if you have been married more than four years, then you need to look at the basis you need to prove (see question 5 below) and the statute of limitations. For example, an annulment based on the age of consent must be filed within four years of the person reaching 18 years old.
4. Which is faster to get – annulment or divorce?
In an annulment, the judgment is effective immediately, without a waiting period, so it is possible for the annulment process to be faster than the divorce. The other party may oppose the annulment, which could slow the process down. The amount of time for each will be very specific to the facts of each case.
5. What makes a marriage legally invalid and eligible for an annulment in California?
- Incest. The couple is closely related by blood.
- Bigamy. One Spouse is currently married when a second marriage occurs.
- Being too young to consent. The individual requesting an annulment was not of legal age at the time of marriage.
- Fraud. One individual induced the other to marry by some fraudulent manner. (A good example of this is when an individual wants to get married ONLY because they want to stay in the United States.)
- Physical incapacity. At least one of the individuals involved has an incurable physical incapacity. (This would include physical conditions such as male impotence which would prevent sexual relations.)
- Unsound mind. At least one of the individuals involved was/is of unsound mind. (This means that there was not an understanding of what the nature and duties of marriage is. These conditions may include mental conditions or even severe intoxication.)
- Force. One of the individuals involved forced the other individual to get married.
This is just a brief overview of some important things to think about when choosing a divorce or annulment. For a full analysis of your options, don’t hesitate to contact David Knecht, who practices family law, at davidknechtlaw.com.
