Divorce, Legal Separation, and Nullity

There are several ways to end a marriage or domestic partnership.

“Divorced” means you were married or registered domestic partners, but you terminated your marital status or domestic partnership through a Court proceeding for “Dissolution of Marriage”, and you are now single.

“Legal Separation” means that you are still married or domestic partners, but you live separate and apart from your spouse.  A couple is considered legally separated by simply living apart from each other with an intent to separate.  However, without going through the Court process, legal separation could be hard to prove.  After a Court proceeding, you’ll be able to provide a Court Order or a Judgment for Legal Separation to any third party to prove your Date of Separation, the assets and/or debts awarded or confirmed to each party, custody orders, etc

A “Nullity” or an “annulment” means your marriage was void, as though it never happened.

Similarities.
The court proceedings for both Divorce and Legal Separation cases are very similar.  Through both proceedings, you could request for Court Orders related to child custody, visitation (parenting plan), child support, spousal support, an award or confirmation of assets and debts, and attorney’s fees and costs.

Differences.    
In a divorce proceeding, if your spouse (the Respondent) is non-responsive after being properly served with the filed Petition, you could request for a default Judgment or a one-sided divorce.  Your marital status will be terminated, and you will become “single” again.  A Legal Separation proceeding, on the other hand, requires both parties’ participation and an agreement to proceed as a Legal Separation.  A Legal Separation does not end a marriage or domestic partnership.

Residency Requirements.
For a divorce, you must have lived in California for 6 months and in the filing county for at least 3 months immediately prior to you filing for divorce.  A Legal Separation does not have residency requirements.  After meeting your 6 months of residency requirements, however, you can simply change from a Legal Separation to a Divorce proceeding.

Advantage of Divorce.
It only requires one party to request for a divorce for the Court to grant a Judgment for Dissolution of Marriage (assuming that there was proper notice to the other party).  Marital status terminates and the parties are returned to “single,” so they may marry again.  The termination of marital status also often symbolizes a positive change in a person’s life, and represents a new start.

Advantage of Legal Separation.
Spouses may continue to receive health insurance benefits through one party’s employer’s health care plan.  Spouses may preserve their religious or moral beliefs against divorce, and yet, still have financial separation and freedom from the other.  After the Date of Separation, each spouse’s earned income will be considered his/her respective separate asset and accrued debt will be considered each party’ respective separate debt.

Nullity.  Nullity or an annulment is based on the underlying fact that the marriage was void.  Therefore, it is treated as if it never happened.  If the marriage never happened, then there was no community property to divide, and there is no obligation to pay spousal support. Child custody and child support would be dealt with separately.)  Here are the reasons/basis to nullify your marriage, and the proof you’ll need for each reason:

• Underage – You must be at least age 18 to marry.  If one party was under age 18 when he or she was married, then the marriage is void.  This can easily be proven by producing a copy of the party’s birth certificate, driver’s license, passport or other government issued form of identification that shows the person’s date of birth.
• Insanity – One party was legally insane when he or she was married.  This requires a medical doctor or psychiatrist to certify the party was legally insane at the time of marriage.
• Incest – Family members may not marry each other.  Proving a spouse married a family member can occur through the testimony of other family members, the production of birth certificates and other family records, such as letters, wills, etc.
• Bigamy – If one party was already married and not divorced when he or she married again, the second marriage is void.  The spouse requesting the nullity of the second marriage can prove bigamy by obtaining a copy of the certificate of marriage for the first marriage that shows his or her spouse was already married at the time of the second marriage.
• Fraud – Proving fraud is difficult because it requires the defrauded party to prove that the other spouse intended to commit fraud before the Date of Marriage.  The “fraud” must go to the heart of the marriage.  For example, in one caselaw, one spouse proved that the other spouse only married for the sake of obtaining a green card, and not because the marriage fell apart for other reasons after the parties married.  In another caselaw, a spouse proved that the other spouse knowingly lied about the ability to have children.  Before you request for a nullity based on fraud, consider whether you have other witnesses or corroborating evidence, aside from your own testimony, and whether the other side has good defenses.  Also consider the amount of time, mental distress, and attorney’s fees that must go into proving your case, i.e. going through discovery, depositions, and full trials with witness testimony.  There are faster and cheaper alternatives.   Schedule a consultation with us, so that you are fully informed of your rights and the important legal issues in your case.