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Can you get an annulment instead of a divorce?

If you are in a California marriage from which you want to extricate yourself, divorce is the obvious answer. However, you may qualify for an annulment instead, based on the particular circumstances of your marriage.

As the California Courts System explains, if you get your marriage annulled, this means that it never happened because it was never legally valid in the first place.

Annulment criteria

In California, some marriages are invalid per se, while others may or may not be invalid depending on their circumstances. Examples of the former include incest; i.e., you and your spouse are close blood relatives, and bigamy; i.e., one of you is currently married to someone else.

If neither of those circumstances applies to you, you must convince a judge that one of the following applied to you on the date of your marriage:

  • You were under 18 years of age.
  • You only entered into the marriage because your spouse committed fraud, such as by failing to divulge that (s)he could not have children.
  • Your spouse forced you into the marriage.
  • Your spouse was and is physically incapacitated to the extent that (s)he cannot consummate the marriage.

Varying statutes of limitation

California has a different statute of limitations for each of the above types of annulment. For instance, if you were not yet 18 when you got married, you must file for annulment before turning 22. If your reason for annulment is force, physical incapacity or fraud, you must file for annulment within four years after the date of your marriage or the date on which you discover the fraud.

Child issues

Bear in mind that an annulment is different from a divorce when it comes to your children. California law presumes that the parents of any child born to a marriage are the married couple themselves. Since an annulment invalidates your marriage from its beginning, your children now have no legal father. Consequently, if you are a man, you must establish paternity before you have any custody or visitation rights to your children. Conversely, if you are a woman, you must establish paternity before you can ask for child support.

While this information is not legal advice, it can help you understand annulments and what to expect.