Can I get an Annulment or do I have to get a Dissolution?

Many people come to my office determined to get an annulment to their marriage/domestic partnership because they’ve heard it’s simpler than getting a dissolution of marriage/partnership. In some cases, this is true, but an annulment is really only possible under certain circumstances and there must be sufficient grounds for taking this action.

First, let’s get the definitions clear. A divorce or dissolution of domestic partnership legally terminates the marriage/partnership. In many states, including California, this takes the form of a “no fault” divorce (dissolution of domestic partnership), meaning neither party is required to show a reason for requesting an end to the marriage/partnership (other than stating that it is over). Also, with divorce and judicial dissolutions of domestic partnership, there’s a mandatory six-month waiting period before the marriage/partnership legally comes to an end.

A court-ordered annulment, on the other hand, invalidates a marriage/partnership—declaring that the marriage/partnership never took place. An annulment is considered a “nullity” of a marriage or domestic partnership.

As noted, there must be cause for a court to rule a marriage/domestic partnership null and void. Among the possible causes, two situations make an annulment mandatory:

  1. Incest. If two parties who are married or in a domestic partnership are close blood relatives, the marriage/partnership is not legally valid.
  2. Bigamy. If one party to a marriage or domestic partnership is already married or in a domestic partnership with someone else, the second marriage or domestic partnership is also invalid.

Other situations considered possible grounds for annulment include:

Underage marriage. If at the time of marriage/registration of domestic partnership one party is a minor (under 18 and too young to be married without consent of the parents), this person can file for an annulment.

Fraud. One common example is someone marrying to get possession of a green card.

Physical or mental incapacity. This includes (1): A party to the marriage or domestic partnership who is unable to physically consummate the union; or (2) a party to the marriage or domestic partnership who is classified as mentally ill or emotionally disturbed and therefore incapable of making informed consent to marriage or partnership.

A related cause is one we’ve all heard about—the age-old story of a man or woman waking up after an all-night drinking binge in Las Vegas and discovering they are now married to a stranger. Getting married while under the influence of drugs or alcohol may be sufficient grounds for requesting an annulment.

While, in general, four years is the legal statute of limitations for requesting a nullity of marriage or domestic partnership, it is very important to seek legal advice the moment you believe you have grounds for a nullity.

It’s important to note that community property laws do not apply in cases of annulment. You may have to file a civil lawsuit in order to obtain any rights to property acquired together or to request an allocation of joint debt. For example, in a divorce you may be eligible for a portion of your spouse’s retirement benefits, but not so in an annulment. This doesn’t mean you don’t have any rights in this situation, only that they must be pursued in a different court and with different actions.

As such, depending on the circumstances, you may have grounds for requesting an annulment to your marriage or domestic partnership but it may not be as clear and simple as you may think. Contact an attorney before taking any action yourself.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.