Divorce / Legal Separation / Nullity
When married, there are three ways in California to change the rights and obligations pertaining to your marriage: divorce, legal separation or nullity.
Divorce:
In California, a divorce, otherwise known as “dissolution of marriage,” is the legal process through which a marriage is terminated. A divorce can be granted if either you or your spouse has lived in the state for at least six months prior to filing for divorce and in the county where the divorce petition is filed for at least three months.
California is a no-fault divorce state, which means that a divorce can be granted without either you or your spouse having to prove that the other spouse did something wrong. Instead, a divorce can be granted on the grounds of irreconcilable differences, which means that the marriage cannot be saved and there are irreparable differences between you and your spouse. Divorce is far and away the most common of the three methods.
Legal Separation:
In California, legal separation is a court process that allows you and your spouse to live apart and make decisions regarding your financial and parenting arrangements, without terminating your marriage. It is a legal status that recognizes your collective decision to live apart while still maintaining your legal marital status. Frequently, legal separation is used for religious reasons or because one spouse needs to be maintained on the other spouse’s health insurance.
A legal separation is similar to a divorce in many ways, in that the court can issue orders regarding child custody, child support, spousal support, and the division of property. However, unlike a divorce, you and your spouse remain legally married and cannot marry another person while legally separated. If you and your spouse are unable to reach an agreement, the court may schedule a trial to hear evidence and make decisions on the issues presented to the judge.
Once all issues have been resolved, the court will issue a judgment of legal separation, which legally recognizes your and your spouse’s decision to live apart and specifies the terms of the separation. You and your spouse may later convert your legal separation to a divorce if you choose to do so.
Nullity:
In California, a nullity, also known as an “annulment,” is a legal process that declares a marriage to be invalid from the beginning. Unlike a divorce or legal separation, which ends a valid marriage, a nullity treats the marriage as if it never existed.
Under California law, a marriage or domestic partnership may be declared null and void if it is found to be invalid for any of the following reasons:
- Incest: The spouses are related by blood or marriage, such as between siblings or between a parent and child.
- Bigamy: One spouse was already married at the time of the second marriage.
- Age: One or both parties were underage at the time of the marriage and did not have the consent of their parents or guardians.
- Force or fraud: The marriage was entered into under duress or fraud, such as marrying under threat of harm or marrying someone for immigration purposes.
- Mental incapacity: One or both parties were unable to understand the nature of the marriage due to mental incapacity or illness.
To obtain a nullity in California, you or your spouse must file a petition with the court and provide evidence to support the nullity claim. If the court finds that the marriage is invalid for one of the above reasons, it will issue a judgment of nullity, which legally declares that your marriage or partnership is void and never existed. After obtaining a nullity, you may then legally marry another.
