The Difference Between Divorce vs. Legal Separation vs. Annulment
A married couple or domestic partnership considering separation in California has several legal options available. This can be confusing and frustrating for some couples who are unsure what the “right” way to separate is. Couples can end or separate a marriage through divorce, annulment, or legal separation, depending on the circumstances of their marriage. The ideal option for your separation will depend on several factors. It can be helpful for couples to talk with a qualified family law attorney to understand if they meet the requirements for certain types of separation.
Divorce
A divorce in California is also called a dissolution of marriage, and this permanently ends a marriage. There are many reasons why couples divorce, but in California, a spouse can file for divorce based on irreconcilable differences. This means that no party is considered at fault for the divorce. Filing for divorce means that both parties are legally single.
To file for divorce, the residency requirements are:
- One spouse lived in California for 6 months before filing for divorce.
- One spouse has been a resident of the county they are filing in for 3 months before filing for divorce.
During the divorce process, several decisions will be made through mediation or litigation. This includes:
- Property division
- Spousal support
- Child custody
- Visitation
- Child support
Spouses can either negotiate these decisions themselves, or the court can decide for them. California requires a 6-month waiting period after filing for divorce before it can be finalized, meaning 6 months is the minimum time a divorce can take. A divorce could take much longer if it is contested.
Legal Separation
Legal separation is a way for couples to live separately without fully ending their marriage. Many couples may choose this option if:
- Their religion doesn’t allow divorce.
- They are unsure if divorce is the right option and may want to repair their marriage in the future.
- They don’t meet the residency requirements for divorce yet and want to live apart until they can file.
There are no residency requirements for legal separation, and there is no waiting period. Legal separation also allows spouses to make the same determinations for property division and child custody.
Because legal separation doesn’t end a marriage like divorce does, parties can’t legally remarry or begin a domestic partnership.
Annulment
An annulment is different from divorce or legal separation because it declares that the marriage is legally invalid and never existed in the first place. Annulments are less common than other forms of separation, as only some couples qualify for an annulment. There must have been something invalid about the marriage since it began. An annulment does not have a waiting period or residency requirements other than living in California.
To get an annulment, one spouse must prove why the marriage was not legal and should not have existed. A marriage will always be considered void if it is based on:
- Incest: Spouses are close blood relatives.
- Bigamy: One spouse was already married or in a domestic partnership.
A judge may decide if a marriage is invalid for other reasons, such as:
- One partner was under the age of 18 when they were married and did not have the judge’s permission to marry.
- One party was of unsound mind and didn’t understand the legal consequences of a marriage.
- One party tricked the other into marriage by force, threat, or fraud.
- One spouse was physically incapacitated and unable to consummate the marriage.
For some claims for annulment, a spouse must file within 4 years of discovering fraud or turning 18. Only being married for a short period of time is not a legally valid reason for an annulment.
If an annulment is granted, it’s as if the marriage never happened. However, there are still cases where property division, support, and other court orders may complicate an annulment. A judge can only order property division and spousal support if one spouse is found to be a putative spouse. This means that the spouse believed in good faith that the marriage was legal. A non-putative spouse cannot request property division or spousal support.
Once a person is granted an annulment, they are legally single and can remarry or begin a domestic partnership.
FAQs
Q: How Long Can You Be Married and Still Get an Annulment in California?
A: For certain marriages, the limit to file for annulment is 4 years. This depends on the basis on which you are claiming that your marriage is invalid. Marriages based on incest or bigamy are void and can therefore be annulled. If a partner is physically unable to have sex, or was forced into the marriage, you must request an annulment within 4 years of the date of marriage. If a marriage is based on fraud, you have to file within 4 years of discovering fraud. If you were under 18 at the time of marriage, you must file for annulment within 4 years of turning 18.
Q: To Be Legally Divorced in California, How Many Years Do You Have to Be Separated?
A: There is no automatic divorce after a certain period of separation. If you and your spouse do not meet the residency requirements for divorce, you can file for legal separation until you can petition for divorce. Once you file for divorce, California has a mandatory six-month waiting period before it can be finalized. Once this waiting period is met, and all decisions about property, support, and custody have been made, your marriage is dissolved.
Q: Why Would You Get a Legal Separation Instead of a Divorce in California?
A: A married couple may decide to get a legal separation instead of a divorce for several reasons, including:
- Religious reasons and beliefs that prevent divorce
- Health insurance concerns
- Uncertainty about whether separation or divorce is what they want
- Failure to meet the residency requirements to file for divorce
For some people, a legal separation acts as a trial for divorce.
Q: What Qualifies You for an Annulment in California?
A: Grounds for annulment include:
- Incest
- Bigamy
- Child marriage
- Unsound mind
- Physical incapacitation
- Threat or force
- Fraud
- A previous marriage to someone believed to be dead
To get an annulment, you must prove one of these reasons to the court. Annulments are rare and require significant proof, even if both spouses agree to get an annulment.
Determine Your Options With Bickford Blado & Botros
Every marriage or domestic partnership is different. A legal professional can help you understand what form of separation is ideal for your circumstances. Contact Bickford Blado & Botros today.
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