Posted by srailawoffice In Divorce December 4, 2020 0 Comment

Many people think there is no difference between a divorce and an annulment and that the concepts are the same and interchangeable. But this is not the case. There are many differences between the two. A divorce ends a valid existing marriage. On the other hand, an annulment is issued when it is proven that the marriage was not valid and thus never existed.

Seeking a Divorce Under California Law

Under California law, either spouse can seek and obtain a divorce regardless of why they want to end the marriage. The common basis used by most divorcing couples is a catchall phrase of “irreconcilable differences.” But the bottom line is that either spouse who wants to end the marriage can, and the other spouse cannot do anything to stop it.

Moreover, in a divorce proceeding, the husband and wife are presumed to be the parents of children born during the marriage. With regard to spousal support, the spouse that has less earning capacity and access to resources may seek an award of spousal support. Additionally, property in a divorce proceeding is considered community property and divided equally between the spouses, unless proven otherwise.

Nullity of a Marriage in California

Unlike a petition for a divorce, California courts will not automatically grant a nullity. The parties must first provide a legal basis for seeking the nullity as outlined in Family Code Section 2210. Some of the legal basis for seeking a nullity includes:

  • Entering into a bigamous marriage
  • Incestuous marriage
  • Fraud in obtaining the other spouse’s consent to marriage
  • Incurable physical incapacity
  • Unsound mind among others

The party petitioning the annulment must prove any of these grounds in court to be able to get the marriage annulled.

In addition, in a nullity, since the marriage has no validity, it will also impact the presumption of parentage of the children. The court will have to make a finding of parentage for the children on a different basis before it can issue orders relating to custody, visitation, and support.

Spousal support is also treated differently in an annulment in that it is not available since the marriage is invalid and there is no spouse as a result. Similarly, there is no community property presumption and property is not divided between the spouses.

Call an Experienced Central Valley Divorce Attorney

If you are involved in a divorce proceeding or considering filing a divorce, it is in your best interest to consult with an experienced divorce attorney to help you learn your legal rights and options with respect to the division of your assets.

For more information or to schedule a complimentary consultation with Central Valley family law attorney Gurjit Srai, please call (209) 323-5558 or complete our online form.